1709204 (Refugee)

[2018] AATA 1001

1709204 (Refugee) [2018] AATA 1001 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709204

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:20 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and third named applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and third named applicant.

Statement made on 20 March 2018 at 4:48pm

CATCHWORDS
Refugee – Protection Visa – Bangladesh – Religion – Muslim apostates – Conversion to Christianity – Fear of harm from Islamic fundamentalists – Previous adverse interactions with fundamentalists – Risk of harm exists - Applicants unable to obtain state protection – Risk exists in all areas of country

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Bangladesh, applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] October 2014.

3. [In] March 2016 a differently constituted Tribunal affirmed the decision of the Delegate.

4. The applicants appealed the decision and [in] April 2017 the matter was remitted back to the Tribunal with a finding that the Tribunal erred in making adverse findings against the first and third named applicants in circumstances where it made a mistake of fact when interpreting evidence provided by the appellants in reaching an adverse conclusion about a material claim, specifically using medical evidence which predated the third named applicants claim to have been sexually assaulted.

5. The applicants appeared before a differently constituted Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [a number of] witnesses from [Church 1] and [Church 2]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

12. The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to Bangladesh for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Bangladesh there is a real risk they will suffer significant harm.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

14. In a statement attached to his application for a Protection visa the first named applicant claims:

15. He is from a middle class Muslim family in Dhaka, Bangladesh.

16. When in high school he had [a number of] Christian friends and a Christian [teacher].  He and his [friends] used to go to their teachers home to [study] and the teacher told them stories about God and Jesus.  In [a particular year] he left high school and his friends went to college and they lost contact. 

17. [In] December 2002 he went to a church party with a Christian friend.  At this party he met a woman who was also interested in Christianity.  Despite that his parents didn’t like her because she doesn’t believe in Islam they were married [in] 2003.  [Some time later] his wife gave birth to their son. After they were married he and his wife prayed to God every night. 

18. [In] February 2011 he ran into his Christian friend from school and he told him that he and his wife were praying to God and they wanted to know more about Christianity.  His friend took them to [Church 3] where they met the priest, [Mr A]. Then onwards they went to church every Sunday.

19. [In] July 2013 he and his family went to [Country 1] for a visit.  When they came back his wife tried to contact her close friend, [Ms B], but her phone was not connected.

20. He is a member of the Awami League.  [In] July 2013 he went to a party meeting and while there he received a phone call from his caretaker who said there was a problem at home.  When he returned home he saw his wife was scared.  She told him a man, [Mr C], came to the house and beat her.  She said the man, who was in a business partnership with [Ms B], wanted to know her friend’s address. 

21. He tried to find [Mr C].  [In] July 2013 [Mr C] phoned him and threatened to kidnap his wife and kill his family if he did not find [Ms B]’s address.

22. [Later in] July 2013 he went to a [shop] with some of his friends and found [Mr C] there.  They had a fight.  [Mr C] became very angry and said he would kill his family.  He knew that [Mr C] was a killer but because he has so many political friends the police never caught him.

23. Somehow [Mr C] learnt that they went to church every week.  He told everyone that he and his wife accepted Christianity.  He also said this to Jamat-e-Islam.  [In] August 2013 they came to his house and started shouting at him.  His neighbour, his friends and his worker then started looking at them differently.  They didn’t want to talk to them anymore.  They all stopped contacting them.

24. [In] August 2013 the Awami League Party called him to attend a meeting.  They asked him why he had accepted Christianity and why he fought with [Mr C].  They beat him and said he couldn’t be a member any longer and took away his membership card.  After he was removed from the party he lost all his power in society.

25. After all this his wife told him that someone was following her every day when she went shopping or when she took their son to school.  She was afraid of [Mr C] because he was always threatening her to find [Ms B]’s address.  They had to remove their son from school.

26. [On a particular day in] 2013 he was very busy with his work and didn’t go to church.  His wife went to church alone.  [At a certain time] he rang her but her phone was turned off.  He was scared and started looking for her everywhere.  [At a later time] he went to a police station but the police told him he couldn’t make a missing persons complaint until after 24 hours.

27. The next day he received a phone call from his wife and she said she was in a [hospital].  He went there and his wife said that [Mr C] kidnapped her and tortured and raped her all night.

28. [Later in] 2013 he found a letter in his mailbox with no name, no address and no date.  It said that if he said anything to the police his son will be kidnapped. 

29. A few days later Jamat-e-Islam people came to his house with some Muslim community members.  They rudely ordered him to stop going to church but he refused.  They started hitting him with their shoes, and threatened to kill him and his family.

30. Again [Mr C] phoned his wife and threatened her.  She said she didn’t want to live with this problem anymore.  She cried all the time and he felt he couldn’t protect her and his son.  He realised that even if he moved to another place he would still have this problem so he applied for an Australia visa.

31. They came to Australia [In] November 2013 and they contacted [Church 1] in Sydney.  Soon after their arrival they started attending church every Sunday.  They were baptised on [a particular date] in [Church 1]. 

32. In a separate statement the third named applicant referred to the same history.  She said that her friend, [Ms B] opened a [business] in partnership with [Mr C].  As she sometimes visited her friend at her [business] she met [Mr C].  She knew that [Ms B] and he had some business problems and that [Mr C] is a known killer with lots of contacts with upper government officers including Ministers.  She said her friend moved to [another country] because of the problems she encountered with [Mr C]. The third named applicant also mentioned that she had many Christian friends at high school who talked to her about Christianity and the bible.  She fell in love with Jesus and her family hit her for this reason but she did not stop. 

33. In support of their claims the applicants provided the following:

    -    a letter from [a hospital] dated [in] 2013 which states: “This is to certify that [the third named applicant] was under my treatment on [a particular date] during her treatment. She revealed that she had been raped.” 

    -    A copy of what appears to be a prescription for [the third named applicant] dated [in] 2013.

    -    A translated copy of an Awami League Membership card in the name of [the first named applicant].

    -    Various letters from members of [Church 1].

    -    A letter from [Mr A], [a religious official] of [Church 3] Bangladesh which certifies that [the first and third named applicants] attended services of the church many times.  The letter states that [Mr A] has known [the first named applicant] personally for a long time.

    -    Copies of Baptism Certificates from [Church 1] for [the first and third named applicants].

    -    Copies of passports pages for all three applicants showing [Country 1] visa’s issued [in] April 2013.

    -    Letters from [Reverend D] of [Church 2]) dated [in] June 2014 confirming the applicants have been attending his church for [a number of] months.

34. The applicants attended a Protection visa interview [in] June 2014 where they presented similar evidence.  The Delegate did not accept that the first and third named applicants are genuine converts to Christianity or that the third named applicant was raped or tortured.  In forming these views the Delegate placed weight on the fact that the applicants had not been baptised on any of their overseas trips before coming to Australia.  Further the Delegate did not accept that the medical certificate provided as evidence of the third named applicant’s rape is genuine.  The Delegate also placed weight on the fact the applicant’s had valid entry visas to [Country 1] at the time they claimed to be experiencing difficulties in Bangladesh but did not take up this opportunity to avoid their problems.  The Delegate also considered the fact that the applicants delayed their departure from Bangladesh for [a number of] weeks after being granted visas to Australia.

35. The applicants applied for a review of the Delegates decision and appeared before the Tribunal on 29 January 2016 to provide their evidence. They also provided the following additional information and evidence:

36. In a statement dated [in] December 2014 the first named applicant affirmed that he has been associated with Christianity since February 2011 in Bangladesh and that the documents previously submitted are genuine.   He said that he was unsure how to realise his conversion and was looking for a country where he could live in freedom and safety with his family.  His visits to [various countries] were his first attempts to do so.  He said he had perhaps been too shy and uncertain as he was not used to undertaking such steps.   He disagreed that general country information is relevant in his personal circumstances.  Further he said that medical documents from Bangladesh are not up to the standards of western countries but this does not mean that they are fake.

37. In a submission from the applicant’s representative which is dated [in] December 2014 it is claimed that the applicant and his family remain under the perilous umbrella of being converts to Christianity and for his outspoken and anti-government views and opinions which are due to him being denied his universal rights in Bangladesh because of his and his family’s religious and political opinion/beliefs and activities.  It is claimed that the family have suffered punitive actions and barbaric treatment from local government agencies and the community but no particulars are provided.  It is submitted that the most recent country information establishes that the applicants’ fears of ongoing persecution are well-founded.

38. Further letters of support from members of [Church 1] and [Church 2] are provided as well as a further letter from [Mr A] of the [Church 3] Bangladesh where it is stated that the applicants were afraid to express their desire to change their religion to Christianity from Islam in Bangladesh but nevertheless they were active members of the church.

39. In a letter dated [in] January 2016 the first named applicant refers to the killing of secularist writers, bloggers and publishers in Bangladesh and to attacks on an Italian doctor and priest; an attempt on the life of a pastor in Pabna in October 2015 and the killing of an Italian aid worker in Gulshan in Dhaka at the end of September 2015.  He submits that the Christian community in Bangladesh is facing huge pressure and is under attack from Islamic extremists who burn churches, houses and attack and kill Christians.  He said that a lot of attacks on Christians go unreported in Bangladesh.

40. The previously constituted Tribunal accepted that the first and third named applicants are Christians but was not satisfied that there is a real chance they will be killed or otherwise persecuted for reasons of their religion or any political opinion which may be imputed to them as a result of their conversion if they return to Bangladesh.

41. For the purposes of the current review, numerous more letters of support and statutory declarations with dates recorded in 2018 from members and clergy of [Church 1] and [Church 2] have been submitted in support of the applicants claimed Christianity.

42. Medical reports in relation to the first and third named applicant are provided including:

43. Report by Psychologist dated [in] February 2018 indicates that the first named applicant has been receiving treatment for depression and anxiety since [October] 2017.

44. Report by Clinical Psychologist dated [in] February 2018 indicates that the third named applicant has been receiving psychological therapy since [June] 2017.  The reports state the third named applicant is receiving therapy for Post Traumatic Stress Disorder.

45. A report from a General Practitioner dated [in] February 2018 indicates the third named applicant has [self-harmed previously].

46. On 27 February 2018 the applicants’ representative provided various print-outs of photographs showing them attending church community activities.

47. In a statutory declaration dated [in] February 2018 the first named applicant requests the Tribunal to consider their mental health status when assessing their application.  He confirms again that he and his family are genuine Christians, a fact which was accepted by the previous Tribunal.  He states that because he and his wife were born Muslims they will be considered apostates on return to Bangladesh.  He states that current country information confirms that Islamic extremism has increased in Bangladesh and that ISIS has established their presence in the country.  He states that their son accompanies them to church and reads the bible every night and joins them in bible group.  He states that due to their continuous study and engagement with the church community their beliefs continue to develop and they believe that it is their duty to spread the good news they receive from Jesus to other people.  This will make them more vulnerable to targeted attacks and killing.  Islamic extremists would even implicate them in false accusations for defaming Islam.  They fear they cannot get effective protection from the authorities because they would either be unable or unwilling to protect them because they are ex-Muslims who converted to Christianity.  Moving to another part of the country is not an option because they would be identified as apostates because of their name; they would be identified as ex-Muslims who promote Christianity and because their mental health issues will present practical difficulties for moving.

48. In a submission to the Tribunal dated 8 March 2018 the applicants representative repeats the claims encapsulated above.  It is submitted that they fear persecution on the following grounds:

    -    Religion (Christianity)

    -    Political opinion (imputed) for holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh such as Jamaat-e-Islami.

    -    Membership of particular social groups:

    o   Christian females facing sexual harassment and assault

    o   Christians facing forced conversion

    o   Muslim converts to Christianity

    o   Perceived as Christian Converts

49. It is submitted that they also fall within the ambit of the complementary protections provisions in the Act.

50. It is submitted that given the current ongoing human rights problems and political instability involving well documented attacks on religious minorities under the current Awami League government there is no meaningful option there of relocation or obtaining effective protection from the authorities.

1. Links to numerous reports are referenced including reports of persecution against Muslim apostates; reports of persecution against religious minorities, and particularly Christians; statements and reports on Islamic fundamentalism in Bangladesh.

2. In respect of various extracts from these reports it is submitted:

   -    Muslim converts to Christianity in Bangladesh face harm.

   -    The persecution of Christians in Bangladesh, especially Muslim converts to Christianity, is getting worse.

   -    Minorities including Christians face persecution in Bangladesh.

   -    Religious minorities have been targeted with the active or passive support of the government authorities.

   -    Christians, particularly Muslims who have converted to Christianity, continue to face serious harm and social ostracism in Bangladesh amounting to persecution.

   -    The Tribunal should not disregard the conduct of the applicants in Australia because the documentary evidence they submitted and their statements establish that they have deep conviction and knowledge about Christianity and the Holy Bible.  They have undertaken bible studies and engaged in constructive discussion with people who have knowledge about Christianity.  Further they continue to engage in Christian activity which is evidence of their commitment they have in their faith.

   -    The applicants will not be allowed to practice their religion in Bangladesh and will be seriously harmed if they return there.

   -    DFAT has issued travel advice highlighting concerns about terrorism threats in Bangladesh.

   -    Bangladesh police spokesman Monirul Islam confirms that the Bangladesh authorities have information that several militant outfits in Bangladesh follow Al-Qaeda.

   -    Increasing political polarisation between the ruling Awami League government and opposition Bangladesh National Party has opened the door for a dangerous wave of Islamist extremist attacks in Bangladesh.

   -    Terrorism expert opined that there is a growing influence of Islamic State in Bangladesh potentially signals more trouble ahead in Bangladesh.

   -    Security analysts say there has been growing evidence for months of a rising tide of violent Islamic extremism in Bangladesh.

   -    Sunni Islamic extremists including Taliban and ISI target individuals and organisations who had supposedly offended Islam.

   -    There is sufficient evidence that the state authorities are either unable or unwilling to control the human rights abuses against religious minorities.

   -    There is sufficient evidence which establishes that the Judiciary especially at the lower levels is corrupt and incapable of protecting the rights of people.

   -    Islamic fundamentalists continue to target Muslims who abandon their religion and convert to other religions throughout Bangladesh and operate with apparent impunity.

   -    Bangladesh has not taken reasonable measures in the protection of its citizens because there is no reasonably effective and impartial police force and justice system.  The applicants will not be able to access an appropriate level of protection comparable to international standards in Bangladesh.

   -    The applicants cannot get state protection due to their conversion to Christianity.

   -    The authorities in Bangladesh will be unable or unwilling to provide state protection to the applicants.

   -    Internal relocation is not an option because Islamic fundamentalists and ultra-conservative society who view apostates as anti-Islamic people hold considerable influence throughout Bangladesh.

3. Recent decisions of the AAT on violations against religious minorities are cited.

   FINDINGS AND REASONS

   Country of reference

4. On the basis of the information provided to the Department and the Tribunal about their citizenship of Bangladesh, including the Bangladesh passports produced at hearing, the Tribunal finds that the applicants are citizens of Bangladesh.  In the absence of any information to the contrary the Tribunal finds they are citizens of Bangladesh and has assessed their claims against Bangladesh.

   Family Unit

5. On the basis of the available information about their family composition the Tribunal finds the first and third named applicants are husband and wife and that the second named applicant is their child.  The Tribunal is satisfied that the first, second and third named applicants are all members of the same family unit. 

   Claimed past harm

6. The Tribunal discussed with the applicants their claims of past harm in Bangladesh, specifically the claimed sexual assault on the third named applicant and attacks against them by religious extremists who came to their home after learning they were Christians.  The Tribunal repeated the concerns raised by the Delegate and the previous Tribunal about their actions following these serious incidents.  The Tribunal pointed out that at the time they were in possession of valid visas to [Country 1] but instead of attempting to gain entry to [Country 1] they chose to remain in Bangladesh and even remained living at the home they lived in when these events were unfolding.  The Tribunal pointed out that instead of attempting to enter [Country 1] on these visas they took the chance of applying for a visa to Australia and that when that visa was finally granted they delayed their departure from Bangladesh for a further three weeks.  The Tribunal noted that the reason they gave to the Delegate for this was that they didn’t like [Country 1] and it was too cold there.  The Tribunal put it to the applicants that their actions and responses do not appear to support their claims of past harm in Bangladesh.

7. In response to the above the first named applicant stated that when they were going through those difficulties they found it hard to make a decision about the correct path to follow.  He said that he and his were not in a good frame of mind and given his past experiences in [Country 1] (including theft) he concluded they would not be better off there. 

8. The Tribunal also put it to the applicants that the medical evidence submitted in support of the sexual assault on the third named applicant is not convincing.  The Tribunal noted that all it does is reveal that she informed a doctor she had been assaulted; it does not indicate that she was examined or that a doctor came to any conclusion about whether she was assaulted based on the medical evidence.  The Tribunal noted the medical evidence submitted in relation to the applicants’ current treatment for depression but noted that this appears to have been prepared in support of their applications for protection and in any event is based on their own verbal accounts of their past experiences.  Furthermore the Tribunal noted that country information supports that fraudulent documents are readily obtainable in Bangladesh and that the Tribunal might place weight on this information when assessing the value of the medical evidence.

9. In response, the first named applicant stated that the doctor questioned them and wrote down what they said.  The third named applicant confirmed that she was examined but the medical staff did not explain to her what they were doing.  The Tribunal found their evidence to be vague, lacking in detail and unconvincing.

10. The Tribunal acknowledged that the previous Tribunal was found to have erred by relying on a second piece of medical evidence which pre-dates the claimed assault.  That said the Tribunal asked the applicants why that piece of evidence was provided in the first place.  The first named applicant stated that he was in possession of that report and when he made the application he simply provided all the information he had available.   The Tribunal accepts this is plausible.

11. In addition to these concerns, the Tribunal expressed surprise that the claimed assailant,[Mr C], who they claim is a known killer with high level connections to people in power, needed to resort to assaulting the third named applicant in order to get the address of his business partner.  The third named applicant replied that he must have tried to get her address but failed.

12. The Tribunal has considered the applicants responses and the medical evidence which has been provided but is not persuaded that this overcomes the concerns raised by the Tribunal and in previous proceedings.  However for the following reasons the Tribunal has decided that it is not necessary to positively determine whether these claimed events occurred or not prior to the applicants departing Bangladesh for Australia. 

    The applicants’ Christian faith

13. The first and third named applicants have maintained throughout that their interest in Christianity commenced when they were living in Bangladesh and that on arrival in Australia their conversion to Christianity was formalised after their baptism.  Their oral evidence was consistent and supported by evidence from numerous members of their church congregations, many of whom were present at the Tribunal hearing and provided credible, persuasive and consistent oral evidence about their attendance at church and integration into their church communities.  This evidence is also consistent with the numerous other statutory declarations provided to the Tribunal by members of their church communities in support of their applications. 

14. On the evidence before it the Tribunal finds that the applicants developed an interest in Christianity in Bangladesh and that they became members of [Church 3] in Bangladesh in 2011.  The witnesses from [Church 2] who were present at the hearing informed the Tribunal that the priest from the church in Bangladesh (whom they met in Australia and who has also provided evidence in these proceedings) has a [relative] living in Australia and that on his urging [they] introduced the applicants to  [Church 2].  They stated that this is further evidence of their claimed religious activity in Bangladesh and that it also accounts for the applicants’ decision to commence attending services of [Church 2] while maintaining their original connection to [Church 1] where they were baptised. 

15. On the evidence before it the Tribunal finds that the applicants were baptised at [Church 1] [in] 2013 and have regularly attended church services and bible study group meetings since then.  The Tribunal also finds that the applicants have been regular participants at church services at [Church 2] since December 2013 and that they are well integrated into the [Church 2] community.  The Tribunal is satisfied that the first and third named applicants are genuine Christian converts and that they are raising their child in their Christian beliefs and religious practices, albeit that he has not yet been [baptised].

16. Based on the strength of their evidence in respect of their religious beliefs and practices the Tribunal accepts that the first and third named applicants plan to continue their Christian beliefs and religious practices should they be required to return to Bangladesh.  The Tribunal accepts they fear harm from their family and community including the more conservative and fundamentalist members of the Islamic community, because of their conversion to Christianity.  The applicants claim that their family have already rejected them on account of their religious beliefs.  As to their community, the applicants told the Tribunal that they will not keep their religious beliefs a secret in Bangladesh and that it will easily become known that they are Christians.  They said that it will be obvious that they do not observe Muslim religious practices and they could be observed attending church.  Further they said that they will have to enrol their son in school and that the paperwork associated with this and indeed other formal transactions in Bangladesh will identify them as converts.  It was also submitted that the applicants surname readily identifies them as Muslims and therefore those learning that they are following Christianity will know that they have converted from Islam.  It was also submitted that even if one person in their community comes to know that they have converted to Christianity, the news will quickly spread to others in their community.

17. The Tribunal has considered the representatives written submissions regarding the situation of Christian converts in Bangladesh as well as other independent country information.  The Tribunal has also taken into account the DFAT Country Information Report, Bangladesh, 2 February 2018.  Relevantly, the Tribunal notes the following:

18. The Bangladesh Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights in the practice of the Hindu, Buddhist, Christian and other religions. 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. DFAT reports that there are no laws prohibiting religious conversion in Bangladesh but that individuals converting from Islam to another religion (generally Christianity) are more likely to face societal pressure than individuals converting to Islam. It is reported that rumours that Christian churches are seeking to convert Muslims have occasionally led to localised violence against Christian individuals and institutions.[1]

    [1] DFAT Country Information Report, Bangladesh, 2 February 2018

19. In November 2016 Minority Rights Group International reported an increase in extremist violence against religious minorities including attacks against Christian converts.  On 7 January 2016 militants allegedly associated with IS killed a Christian convert in Jhenaidah.  On 22 March 2016 militants armed with knives killed a 68 year old Christian convert In Kurigram.  On 20 May 2016 a doctor in Kushtia district was killed by militants with a machete.  IS reportedly took credit for the attack claiming the victim had “called to Christianity”.[2]

    [2] Minority Rights Group International, Under threat: The Challenges facing religious minorities in Bangladesh, November 2016

20. An International Religious Freedom Report (2016)[3] states that during the reporting period there were a significant number of attacks against religious minorities in Bangladesh.  In May the media reported that members of the local Muslim community threw six to seven crude bombs into the home of a family living in Western Chuadanga who had converted from Islam to Christianity.  The report states that according to religious minority groups the government continued to discriminate against them in property disputes and did not adequately protect them from attacks.

    [3] Bangladesh 2016 International Religious Freedom Report

21. A UK Home Office Report[4] from 2012 states that according to Open Doors (OD), an evangelical Christian organisation that provides religious materials, training and support to Christians around the world, Christians, and particularly Muslims who convert to Christianity, are not safe in Bangladesh.  According to the International Coalition for Religious Freedom, a US-based NGO, Muslim converts to Christianity generally do not openly practice their religion.  Sources consulted indicate that Muslims who convert to Christianity could face rejection by their families and society and physical “danger”.  A May 2005 US Newswire article reports that Christian Freedom International (CFI) a US based human rights organisation, found evidence of “persecution’ of Muslims who had converted to Christianity during a fact finding mission to Bangladesh.

    [4] UK Home Office  Bangladesh: Country of Origin Information Report, 2012

22. A 2016 UK Home Office Report[5] quotes an OHCHR report of 09 September 2015:

    ‘Religious conversions are generally rare and, if occurring, mostly take place in the context of interreligious marriages. However, conversions have also occurred outside interreligious marriages, in particular from Buddhism to Christianity or from various religions to Islam. Those having converted to another religion – including sometimes even their offspring after generations – typically face social ostracism in their social environment based on the ascription that the conversion had allegedly not been genuine and instead been motivated by the expectation of material benefits or other non-religious incentives. Some converts actually had to go into hiding or have concealed their newly adopted faith for fear of social stigmatization’.

    [5] UK Home Office, Country Information and Guidance Bangladesh: Minority religious groups, March 2016

23. A more recent UK Home Office report published in September 2017 quotes a source saying that there ‘is more harassment and ill-treatment’ for (Christian) converts in Bangladesh. However, the source also noted that this ‘depends on the family background’ and that well-educated families are less likely to be bothered about it. (However), the source noted that some people keep their conversions secret for fear of losing their inheritance, being thrown from the house or even being killed for apostasy.  The General Secretary of the Bangladesh Baptist Church Sangha observed that his church do not mention in written documentation that a person has converted.[6]

    [6] Report of a Home Office Fact-Finding Mission, Bangladesh, Conducted 14-26 May 2017, Published September 2017

24. The Tribunal notes that in assessing whether the applicants face a real chance of serious harm in Bangladesh the previously constituted Tribunal placed weight on the Department of Foreign Affairs and Trade country information report on Bangladesh dated 20 October 2014 which assessed that in urban areas violence against Christians was infrequent and that Christians were generally able to practise their faith without interference.   While the Tribunal acknowledges that DFATs most recent country information report which is dated 2 February 2018 again refers to occasional localised incidents of violence against Christians it nevertheless reports on recent violent attacks on Christian converts which are also mentioned above.  Further, several of the abovementioned reports along with a number of reports provided by the applicants’ representative also indicate that violence and social ostracism against converts continues with reports of physical attacks and killings in different parts of Bangladesh.   Also, the country information[7] suggests that Islamic fundamentalism is a growing force in Bangladesh and the Tribunal accepts that this increases the risk of harm to Muslim converts to Christianity. 

    [7] European Asylum Support Office, EASO Country of Origin Information Report, Bangladesh Country Overview, December 2017; DFAT Country Information Report, Bangladesh 2 February 2018; Minority Rights Group International November 2016

25. The Tribunal also observes that while there is a range of country information available in respect of the treatment of Bangladeshi Christians generally, information which specifically addresses the situation for persons converting from Islam to Christianity is more limited.  In this respect, the Tribunal notes and agrees with the submissions of the applicants that a differentiation should be made between the situation of persons born into Christianity in Bangladesh and former Muslims who have converted to Christianity in a predominantly Muslim country where fundamentalist opinions are on the rise.  

26. Given the ongoing attacks against Christian converts in recent years and the reported increase in fundamentalist views and in the absence of any firm independent information to support there is not a real chance of serious harm to Muslims who live in urban areas and convert to Christianity, the Tribunal has adopted a cautious approach in assessing whether there is a real chance of serious harm to the applicants.   

27. The Tribunal accepts the first and third named applicants were raised as Muslims but have since converted to Christianity.  The Tribunal accepts they are now committed practicing Christians and that they will continue to practice their Christian faith if they are required to return to Bangladesh.  Based on the discussions with the first and third named applicants at hearing about their claimed duty to “spread the good news” the Tribunal is not persuaded that they currently, or will in the future, openly promote Christianity outside of their church community, however it nevertheless accepts on the available evidence that they will not refrain from or hide their religious practice or views in Bangladesh.  The Tribunal also accepts the submission that their name readily identifies them as Muslims and that those learning they are practicing Christianity will know that they converted from Islam.  Furthermore the Tribunal accepts it is plausible that their dealings with persons in government agencies, such as when registering their son’s enrolment in school, also heightens the risk that their conversion will become known in their community.  The Tribunal also notes the independent evidence that converts are sometimes socially ostracised and some converts have gone into hiding for this reason.

1. Considering the circumstances of the applicants and taking a cautious approach in respect of the available independent evidence the Tribunal is satisfied that there is a real chance the first and third named applicants will suffer serious harm from their families, community and/or fundamentalist or extremist Muslims if they return to Bangladesh and resume living in Dhaka.

2. While Bangladesh has a very large population, the non-indigenous Christian community is relatively small (around 0.3% of the population)[8].  As noted their name increases the risk of them being identified as Muslim converts to Christianity and heightens their risk of violence from the community and Islamic fundamentalists.  The Tribunal accepts there is a real chance the applicants will suffer serious harm anywhere they might choose to live in Bangladesh.

   [8] Minority Rights Group International Report, Under Threat: The challenges facing religious minorities in Bangladesh, November 2016

3. While the Tribunal notes the country information indicates that the security forces have reportedly responded to societal violence against Christians it is also widely reported that despite measures to improve the police force, low wages, lack of education and poor working conditions contribute to a culture of corruption and inept policing.   DFAT’s most recent Country Information Report quotes a US State Department report as noting in 2016 that public distrust of police and security services deterred many Bangladeshis from approaching them for assistance or to report criminal incidents.  Notwithstanding the authorities attempts to face the challenge of extremist Islamist group activity in the country independent evidence clearly indicates ongoing instances of harm based on the practice of Christianity as well as conversion.  The Tribunal is not satisfied that the applicants could obtain from the authorities of Bangladesh protection such that there would not be a real risk of serious harm. 

4. Considering all the evidence, and the for the reasons provided above, the Tribunal is satisfied that there is a real chance the first and third named applicants will suffer serious harm on return to Bangladesh on account of them being Christian converts.  Accordingly, the Tribunal finds they have a well-founded fear of persecution in Bangladesh for reason of their religion.

5. As noted above, the applicants are holders of [Country 1 temporary] visas which were issued [in] April 2013 and are valid until [April] 2018.  This visa allows the holder to travel to a [Country 1] port of entry and request permission of the [Country 1] immigration inspector to enter the country.  The duration of stay depends on the purpose of the visit and other particulars of the case.   Those allowed to enter will generally be granted [a period of] admission on entry and it may be possible to obtain [an] extension to the visa on application[9].

   [9] [Source removed].

6. If the applicants were to attempt to travel to [Country 1] on these visas they will be required to explain the purpose of their visit to the [Country 1] Immigration Officer at the port of entry, who will then decide whether to grant admission and for how long.  If the applicants were to disclose that they intend to seek protection in [Country 1] (which the Tribunal is satisfied they might) then their visas may be subjected to cancellation at the port of entry. 

7. In view of the above the Tribunal does not find that the applicants have the right to enter and reside in [Country 1] at the time of decision. Accordingly, s.36(3) of the Act does not bar the applicants from Australia’s protection obligations.

   CONCLUSIONS

8. For the reasons given above the Tribunal is satisfied that the first and third named applicants are persons in respect of whom Australia has protection obligations. Therefore they satisfy the criterion set out in s.36(2)(a) of the Act.

9. The Tribunal is satisfied that the second named applicant, who is the son of the first and third named applicants is a member of the same family unit as the first and third named applicants for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of his application depends on the outcome of his parent’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

   DECISION

10. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first and third named applicants satisfy s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and third named applicants.

    Tania Flood
    Member