1710203 (Refugee)

[2021] AATA 5531

1710203 (Refugee) [2021] AATA 5531 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710203

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Roslyn Smidt

DATE:11 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 May 2022 at 12:40 PM

CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Baptist Christian – evangelism – social and welfare support programs – fear of harm from Jamaat-e-Islami (JI) and Islamic extremism – likelihood of religious violence – credibility concerns – mental health issues – allegations of dishonesty or fraud – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 438
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who are citizens of Bangladesh, applied for the visas on 24 November 2016. The delegate refused to grant the visas.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

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

   BACKGROUND

9. [The first named applicant] (referred to as the applicant in this decision) is a [age] year old married man of Christian faith from Bangladesh. He was born in Barisal where he completed a [specified] degree.  In January 2000 he moved to Dhaka where he worked for a [business] until his departure for Australia. He held the position of General Manager at the time of his departure.

10. [The second named applicant] (referred to as the applicant’s wife in this decision) is a [age] year old Christian woman. She lived in Khulna until February 2001 after which she relocated to Dhaka where she remained until her departure for Australia. She completed a [specified] degree in 2001. She worked as an [Occupation 1] at [named workplace] in Khulna and also in a [business] in Dhaka, but ceased working in about 2008. Her parents and two of her siblings live in [Country 1].

11. The applicants have a [age] year old daughter who is included in this application.

12. The applicants arrived in Australia on visitor visas [in] November 2016.

    THE APPLICANTS ABILITY TO PROVIDE EVIDENCE

    13.      The applicants have provided the following reports regarding their mental health:

    ·A medical certificate dated 16 April 2017 from [a named medical centre] which states that the applicant suffered from anxiety and depression and had been referred to a psychologist and a report dated 16 April 2017 which appears to have been completed by his GP to support this referral.

    ·A report from a psychologist dated 16 March 2018  which state that she had been seeing both applicants since August 2017 for treatment of anxiety and depression. It states that they both worked in as [occupation] at a [business]. According to the applicant he had a happy normal life until he and his daughter were attacked by extremists in 2016 and he feared further harm on return to Bangladesh. The applicant’s wife said that she feared on return to Bangladesh because of her religion. Both applicants reported symptoms including depression, sleep and memory issues relating to relating to their past trauma and the situation with their visa applications. The wife’s report also states that she suffers from panic attacks. It recommends against lengthy interviews and requests that decisions makers keep in mind that the applicant’s wife’s ability to recall important dates may be slightly diminished.

    ·A letter dated 30 March 2019 from a different psychologist which states that the applicant’s wife had received 8 counselling sessions for depression and panic attacks between May 2018 and March 2019.

    ·Psychologist reports dated 13 November 2021 which states that the applicant and his wife suffered from extremely severe symptoms of depression and anxiety and their mental health was deterioration. It states that they are currently attending frequent psychological treatment sessions. It requests that their psychological circumstances be considered and their immigration status be resolved as quickly as possible.

13. I do not accept that the applicant or his daughter were attacked in 2016 or that he and his family fled Bangladesh to escape harm at the hands of extremists. It follows that I do not accept that he and his wife are suffering from depression or anxiety because of trauma associated with these problems.  Furthermore, it was established at the hearing that the applicant had attended some eight counselling sessions in 2018 and 2019, but had not received any treatment in 2020 because of COVID-19 and the lack of a counsellor or psychologist with appropriate language skills and had attended only one session in 2021. This is at odds with the November 2021 report which states that he and his wife were attending frequent treatment sessions and casts some doubt on the reliability of other aspects of the report.

14. Nevertheless, I accept that the applicants suffer from depression and anxiety related at least in part to issues related to their unresolved protection visa application.

15. At the beginning of the hearing I established the applicants felt able to answer my questions. I advised them to let me know if they had any problems during the hearing so I could deal with them appropriately. As noted below, at the end of the hearing the applicant stated that despite his depression and anxiety he was able to answer my questions.

    SUMMARY OF THE APPLICANT’S CLAIMS

16. According to submissions from the applicant’s representative dated 25 November 2016 and 15 November 2021, the applicant is at risk of harm if he returns to Bangladesh because of: his religious beliefs, practices and activities as a Baptist Christian; his commitment to promoting his religion and spreading the news about Jesus Christ to Christians and non-Christians; his association with a religious association, which engages in promoting Christianity; political opinions that would be imputed to him for holding opinions against parties which promote Islam as a state religion, such as Jamaat-e-Islami; and his membership of the particular social group of Baptist Christians promoting Christianity and spreading the news about Jesus Christ to Christians and non-Christians.

17. The applicant claims that he was attacked and threatened by members of Jamaat-e-Islami in mid-2016 because of his involvement with a group called [Organisation 1] in [Locality 1], and in particular his involvement in evangelising or at least discussing Christianity with Muslims. He claims that these people or their associates also attempted to abduct his daughter in Dhaka. He claims that he would continue to engage in social work and evangelising activities if he returned to Bangladesh and that he and his family would therefore be at risk of harm from the people who attacked him in 2016 or other Islamic extremists.

18. The applicant claims that he and his family are also at risk of harm because Islamic extremism is on the rise in Bangladesh and the authorities would not provide him and his family with protection because of their religion.

    COUNTRY INFORMATION

    Christianity[1]

    [1] Unless otherwise stated, this is based on information in DFAT Country Information Reports 20 October 2014, 5 July 2016, 2 February 2018 and 22 August 2019.

19. An estimated 89 per cent of the population of Bangladesh is Muslim. About 10 per cent are Hindus. The remainder of the population is Christian and Buddhist.  Christians live in communities across the country, with relatively high concentrations in Barisal City and Gournadi in Barisal District, Baniarchar in Gopalganj District, Monipuripara and Christianpara in Dhaka City, and in the cities of Gazipur and Khulna. Most reports consulted suggest that there are about 600,000 Christians in Bangladesh. The majority of Bangladesh’s Christians are Catholics.

20. The Constitution holds that Islam is the state religion but also commits the state to ensuring equal status and equal rights for all religions and to upholding secularism. The right to profess, practise, or propagate all religions is protected ‘subject to law, public order, and morality’ while granting political status in favour of any religion, the abuse of religion for political purposes, and discrimination against or persecution of persons who are members of any religion is prohibited.

21. Christians are able to access state schools, hospitals and other services. Christians have made a significant contribution to public life, particularly in relation to social issues. The Christian education system, which operates throughout the country from primary to tertiary levels and is open to all faiths, is held in high regard by the communities in which these institutions operate. This provides Christians with some degree of protection against harassment at the local level.

22. There are no laws prohibiting religious conversion. DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections. Rumours that Christian churches are seeking to convert Muslims have occasionally led to localised violence against Christian individuals and institutions.

23. Communal attacks against religious minorities occur from time to time. However, these problems do not appear to be frequent or widespread.

24. Reports from the US Department of State Report on International Religious Freedom for 2011 to 2013 provide a useful overview of the period during which the applicant claims to have volunteered in Barisal. They note that the government does not restrict religious freedoms and has made some efforts to improve the situation of religious minorities. Nevertheless, violence and discrimination related to religious affiliation continued to be a problem. Violence against religious minorities often related to personal or property disputes. Non-Muslims from a lower economic strata are disadvantaged due to their inability to afford personal security or motive officials to assist.  Much of this violence appears to have targeted Hindus and Buddhists, but Christians were also at risk in particular former Muslims who convert to Christianity.

25. In October 2014 DFAT observed that sectarian tensions were commonly linked to perceived political affiliations and escalated during times of political unrest. Christians and other religious minorities were targeted by BNP and JI protesters around the time of elections held in January 2014 because they were perceived to be affiliated with the Awami League. Christian converts often face prejudice, which occasionally turns to violence.  Christians in some rural areas face a greater risk of discrimination and violence than those in urban areas. However, different religious communities generally co-exist and interact peacefully on a day to day basis. 

26. In July 2016 DFAT noted that Christians had been subjected to heightened sectarian violence as a result of the rise of Islamic militancy. This mostly affected the northwest of the country and the main victims of this violence appear to have been priests and converts. However, the number of casualties remained low in proportion to the number of Christians in the country. Police were despatched to protect churches and clergy who had been threatened. 

27. In August 2019 DFAT noted that problems related to ethnic and religious issues often overlapped in the Chittagong Hill Tracts and were frequently related to land disputes between members of indigenous groups and recently arrived Muslim settlers, in which religion was a contributing rather than a causative factor. Rumours that churches are seeking to convert Muslims, local tensions over interfaith relationships and news of US-led military activities in or against Muslim countries have all occasionally led to threats against Christian individuals and institutions. Small-scale localised attacks by Islamist militant groups against minority religions in 2013-16 killed or seriously injured several Christians. Authorities despatched police to protect churches and clergy in response to the attacks and death threats made by militants. Isolated attacks and threats by militants against Christians continue to be reported, but these claims sometimes lack credibility. 

28. In August 2019 DFAT assessed that Christians faced a low risk of societal violence in the form of occasional localised incidents. This risk is higher for individual Christian converts. Christians may face a risk of sporadic attacks from Islamist militants.

29. A UK Home Office report issued in March 2022[2] provides a very similar overview to DFAT’s 2019 report. It confirms that Christians are able to express and practice their faith freely throughout Bangladesh. It states that there is little evidence to suggest that Christians in Bangladesh face state discrimination, and while they may face some instances of social discrimination, it is not usually serious or repetitive in nature. It also notes that the evidence suggests that some Christians experience societal violence in the form of occasional localised incidents including physical attacks, land grabs, harassment and social isolation.  Muslims who convert to Christianity and lack the support of their community or family are particularly vulnerable to these problems. Rumours that churches are seeking to convert Muslims and local tensions over inter-faith relationships have also occasionally led to threats against Christian individuals and institutions.

    [2] Country policy and information note: religious minorities and atheists, Bangladesh, March 2022 >

    The US Department of State Report on International Religious Freedom Bangladesh for 2020 paints a broadly similar picture to the information set out above.

30. In preparing this overview I have considered the media articles and reports provided by the applicant. They confirm that Christians sometimes face localised violence, much of it in the north of the county.. A number suggest that extremism is rising in Bangladesh, but not that it is so widespread that all Christians are at risk of harm.

    The Baptist Church in Bangladesh

31. According to the Baptist Church Sangha[3] website, Baptists have had a presence in Bangladesh since 1806 and are the oldest and largest Protestant denomination in Bangladesh. There appear to be three Baptist associations in Bangladesh: the Bangladesh Baptist Church Fellowship, which has 535 churches with 54,500 members; the Bangladesh Baptist Church Sangha, which has 381 churches and 25,187 members; and the Garo Baptist Convention, which has 159 churches and 13,300 members.[4]  All of these organisations have some involvement in social welfare activities.

    [3] Association or community.

    [4] Baptist World Alliance >

    The Sangha[5] operates in 23 districts, including Dhaka, Madaripur and Barisal. The Barisal regional church has a youth convenor, a Sunday school convenor and a women’s convenor. The Sangha operates the Baptist Theology Academy in Dhaka, which has the stated purpose of building up Pastors, Deacons and lay leaders to strengthen the church spiritually and train new converts. It also operates three high schools [in] Barisal.  The Sangha website notes the Baptist belief that evangelism is an important part of the work of the church. It states that while evangelising efforts have not been fruitful in the past, they have over 35 churches in indigenous areas and it has appointed a pastor as an evangelist to preach the gospel among the people of Sylhet.

    [5] See Bangladesh Baptist Church Shangha, and Shed Board website: http:>

    The Social Health Education and Development Branch of the Sangha (SHED) runs a range of social programs focusing on poor and vulnerable people, especially women and children. SHED operates 26 pre-schools, which aim to deliver opportunities for less fortunate children. Its website includes a call for volunteers. There is a regional office of the Sangha in Barisal.

32. The Bangladesh Baptist Church Fellowship also operates social welfare programs, including youth programs.[6] It established an organisation called the Bangladesh Baptist Church Youth Fellowship (BBCYF) in 1975 with the aim of helping young people to grow in leadership, progress educationally and morally, and encouraging them to carry on the activities of their churches. There are currently 67 Youth Fellowships and 13 Regional District Youth Fellowships.

    [6] accessed on 25 February 2022.

1. No specific information on problems faced by Baptists was located.

   Jamaat-e-Islami and Islamic extremism

2. Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with strongholds in Rajshahi in northern Bangladesh and Chittagong, the country’s second-largest city. JI is committed to the creation of an Islamic state and to the removal of ‘un-Islamic’ laws and practices.  

3. JI aligned with Pakistan during the 1971 war of independence from Pakistan. In 2009 the Awami League came to power and established an International Crimes Tribunal, which was seen by many as designed to punish its political opponents.

4. In February 2013 a number of JI leaders were sentenced to death by the Tribunal for crimes committed during the war of independence. On 1 August 2013, the Bangladesh Supreme Court declared the registration of the Bangladesh Jamaat-e-Islami illegal, ruling that the party is unfit to contest national elections.

5. In the lead-up to the 2014 elections, JI launched a wave of attacks against the Hindu community, mostly in the north-west of the country. This appears to have been caused mainly by resentment over the testimony of Hindu witnesses against JI leaders accused of war crimes during the war of independence.

6. The recent execution of five JI leaders for war crimes charges resulted in periodic strikes and violent demonstrations across the country. In response the authorities have detained thousands of JI members in counter-terrorism operations. Few members of the senior leadership remain free and active and DFAT assesses that senior leaders and ordinary members who continue to engage in political activities and demonstrations face a high risk of arrest. While the size of the party reduced significantly, it remains well organised and influential. The situation appears to be better for members in villages.

7. Successive Bangladeshi governments have faced the challenge of dealing with extremist Islamist groups. Between January 2013 and mid-2016, domestic militants, including some claiming allegiance to the Islamic State, conducted mostly small scale attacks across the country that caused numerous fatalities. These attacks targeted foreign nationals, religious and sexual minorities, and members of groups perceived to threaten conservative Islamist values. The most serious attack occurred at a restaurant in Dhaka in July 2016 and resulted in the deaths of two police officers and 20 hostages, mostly foreigners. Bangladeshi authorities conducted extensive counter-terrorism operations in response and continue to take a hard-line approach on extremists, including proscribing key groups and arresting hundreds of militants. These actions appear to have reduced the capability of militant groups.

8. A May 2020 article[7] describes IS’s presence since the 2016 attack as low-key.  An attack on police in April 2019 was the first action claimed by the group in two years and according to police this was in fact a police raid on IS members when a shed filled with explosives blew up. There appear to have been several attacks on police since that time, and one on an office of the ruling Awami League.

   [7] 'Islamic State’s Rejig And Resurgence In South Asia –Analysis', Eurasia Review , 25 May 2020.

9. The US Department of State Report on International Religious Freedom Bangladesh for 2020 reports that some Islamic extremists involved in acts of violence have been charged and convicted in relation to these crimes.

   [Organisation 1] and [Organisation 2]

10. The following overview is based on: information on [Organisation 1] [social media] pages located by the delegate and attached to the applicant’s Department file; information from [Country 2] charities register entry for [Organisation 2]; information on the group’s current website ([URL]); information in the [Organisation 2] UK report for 2020 and an appeal brochure for the group; information in a letter from [Mr A], the director of the group in Bangladesh; and written and oral evidence from [Mr B], the founder of the group.

11. According to the applicant and [Mr B], the [Organisation 1] operated under that name from 1991 until 2018 or 2019 when it was renamed [Organisation 2]. [Mr B] played a leading role in the group in Bangladesh until he moved to [Country 2] in about March 2011. He continued his involvement from [Country 2] and in about 2018 he registered a [Country 2] charity called [Organisation 2] to support the group’s work in Bangladesh.

12. In a letter dated December 2016, [Mr A] said that [Organisation 1] was a Christian religious organisation whose main goal was to spread the word of Jesus Christ through social development activities. The letterhead states that the head office of the group is in [Locality 2] in Dhaka and names eight other locations, including Barisal and [District 1], the district which includes [Locality 1]. The letter refers to a website with the address [URL]. This website no longer exists. It appears to have been incorporated into the [Organisation 2] website.

13. A [social media] page located and downloaded by the delegate on 19 April 2017 shows a number of events organised by [Organisation 1] including in [Locality 1] on 6 December 2016. This page appears to have been established in May 2011 and renamed [Organisation 2] in June or July 2019. A post dated [in] November 2014 states that [Organisation 1] completed church building construction in 2008 on [Church 1] in the District of Barisal. A [March 2015] post refers to a Dhaka [Organisation 1]. A [February 2016] post states that “[Mr C] was the first General Secretary from Barisal [Organisation 1] 1993.” There are also numerous photographs of school students, women’s events, events organised for different Christian denominations, training sessions and events relating to the distribution of aid. Several refer to a National Evangelism Training Conference, which appears to be held annually.

14. According to the applicant’s evidence to the delegate and at the hearing, the head office of the [Organisation 1] was in [Locality 1] during the time he was involved. There were seven or eight employees in the town and about 10 volunteers. The group operated a primary school and engaged in a range of social welfare and development activities and was also involved in evangelising. Between 60 and 200 Christians attended gatherings organised by the group in [Locality 1].

15. [Organisation 2] was registered as a charity in [Country 2] [in] December 2017. According to the group’s website, the purpose of the charity was to advance Christianity and relieve poverty in Bangladesh, in particular, but not exclusively, through the provision of support to the [Organisation 1]. [Mr B] was named as one of six trustees and also as Executive Director.  Their current appeals include: [details deleted].

16. [Organisation 2] issued an annual report covering 2020. It states that the organisation funds relief, training and education for some of the poorest families in Bangladesh. It also supports a school in [Town 1] with 115 students from different creeds and religions. According to the report, it has over 200 volunteers and operates 59 [named] Groups, including [number] in the Barisal area and [number] in the [District 1] area. An appeal brochure states that [named] Groups are cross denominational and assist young Christians to learn about their faith and support each other while living in a majority Muslim nation. It states that all money raised would be used to support young Christians in Bangladesh. Neither of these publications mentions evangelism.

    Corruption and document fraud in Bangladesh

17. In 2019 DFAT noted that corruption is widespread and  the use of fraudulent documents and fraudulently obtained genuine documents is common in Bangladesh. The report suggests that agents who act as middlemen for people hoping to migrate often obtain these documents for their clients, sometimes without their knowledge.

    FINDINGS OF FACT

18. After considering all of the evidence, I did not find the applicants to be a truthful or credible witness. I found much of the applicant’s evidence during the hearing to be confused, vague and unpersuasive. Furthermore, there are inconsistencies in his evidence and some of his claims are implausible or at odds with the independent evidence. Some of the matters raised below are relatively minor and considered in isolation would not have caused me to reject his claims in their entirety. However, others are more serious and this, in combination with the overall pattern of his evidence, has led me to conclude he has not provided an honest or accurate account of his activities in Bangladesh or the problems these activities caused. The evidence provided evidence mostly purported to confirm evidence provided by her husband. However, in my view it does not overcome the problems with the applicant’s evidence and I am not satisfied that she had provided an honest or accurate account of the problems faced by her family in Bangladesh.

19. In reaching this conclusion, I have taken account of the reports relating to the applicants’ mental health when questioning the applicants and in my assessment of their claims. In addition, they were provided with an opportunity to provide post hearing written submissions which were prepared with the assistance of their representative, an experienced lawyer who was present at the hearing. I am satisfied that they were given a meaningful opportunity to provide any claims or evidence they wished and to comment on all matters raised at the hearing. 

    The applicant’s life in Barisal prior to 2000

20. The applicant was born into a Baptist family in Barisal, a city of some 350,000 people located in south central Bangladesh.  At the hearing he confirmed that Barisal has a reasonably large Christian community. He attended [School 1] and subsequently completed a Bachelor degree at [College 1] in December [year]. His father worked at that school until his retirement.

21. The applicant claims that his family has been deeply involved with their religion for many years.  In submissions provided prior to the hearing he claimed that his parents and grandparents were involved in establishing a group called [Group 1]. He also claimed that they engaged in promoting their religion and encouraging non-Christians to convert. At the hearing he explained that [Group 1] sought to bring people of different faiths together to pray and celebrate religious holidays, but it did not engage in evangelising.

22. In his written submissions to the Department, the applicant said that he and his family had been able to go to church and attend Christian schools without facing significant problems, but also stated that Christians frequently faced discrimination and persecution. He said that he recalled many incidents when Muslim fundamentalists threw objects at him and his family, called them names and insulted their religion.  At the hearing the applicant said that he had not experienced any significant problems because of his religion prior to mid-2016 and no other members of his family had faced significant problems at any time because of their religion.

23. In his written submissions to the Department the applicant claimed that he had taken an active part in development activities and was an excellent social worker. It provides no dates for these activities.  At the hearing he said that he had been involved in fundraising, distributing food and clothing to the poor and organising religious meetings and seminars for [Organisation 3] prior to 2000. He was also involved in volunteer social work for his church youth group.

24. I accept that the applicant is a Baptist. I accept that he attended church and participated in [Organisation 3] and other Christian groups and activities prior to moving to Dhaka in 2000. I accept that his family founded or participated in a group called [Group 1], which sought to bring people of different faiths together. However, I do not accept that his family was actively involved in encouraging non-Christians in Barisal to convert to Christianity. This claim was not repeated during the hearing and it is at odds with his evidence regarding the aims and activities of [Group 1] and his later evidence regarding the lack of opportunity for evangelising in Barisal (see below).

25. I accept that the applicant and his family may have faced some occasional minor issues because of his religion prior to 2000. However, I do not accept that they faced insults and harassment from Islamic extremists on many occasions during that time. If they had been repeated insulted and faced harassment including have objects thrown at them I believe he would have mentioned this when asked about their treatment at the hearing. Not only did he fail to do so, he said that he had not faced any significant problems until mid-2016 and that other members of his family have never faced significant problems. I also note the independent evidence which suggests that Christians living in areas where they have schools which provide an education to all faiths are often protected from such harm. Barisal is home to respected Baptist high schools for girls and boys.

26. I believe that the applicant sought to distort the nature of his family’s religious activities and the problems he and his family faced prior to 2000 in his initial application. While this is a relatively minor issue, it suggests a willingness to knowingly provide inaccurate evidence in support of his claims.

    The applicant’s employment in Dhaka

27. The applicant moved to Dhaka for work in 2000.  He worked for a [business] called [Business 1] in Dhaka from 2000 until his departure for Australia in 2016. He has provided two references from his employer, which confirm that he was at the company from January 2000 until his departure for Australia and that he held the position of General Manager at that time.

28. In his written submissions to the Department, the applicant said that he was the only Christian employed at [Business 1]. He claimed that he was paid about half as much as others in similar positions. While his hours were 9am to 5pm he used to work until 9pm sometimes on Fridays, the first day of the weekend in Bangladesh. He was not paid for this work. In addition his work colleagues always asked him to convert to Islam because they believed that Christianity was a fake religion.

29. During his April 2017 interview with the delegate the applicant said that he had obtained his job because a relative was acquainted with the owner. In about 2005 or 2006, he was promoted to the position of manager. He again claimed that he was paid less because of his religion and that he was required to work long hours.

30. During the hearing the applicant said that [Business 1] was a family business and he was trusted by the owners. The business employed about 30 workers, and after being promoted to general manager he was responsible for directing and supervising their work. When asked who had discriminated against him at work, he said that the former general manager and others had picked on him. I observed that he had been promoted to the position of general manager which suggested that he had not faced discrimination at work.  He said that it was only a small company and being general manager did not mean much. He added that he had to interact with people outside the company and they would snub him. The other employees also snubbed him. When asked for more details of his problems with other staff at the company, he said that they used to talk amongst themselves, saying things like who is this person, he is not from our religion. I noted that the applicant was well educated and observed that information on the general situation in Bangladesh suggested that Christians did not generally face significant problems in areas such as employment or education.  He said that Christians were always looked down on.

31. I do not accept that the applicant received about half the appropriate salary for his position while working for [Business 1] or that he was often required to work many hours of unpaid overtime because of his Christian religion, as claimed in his submissions to the Department. If he had faced these problems I believe he would have mentioned them when asked about his work at the hearing, but he failed to do so and his evidence suggested that he was on good terms with his employers. Nor do I accept that he faced discrimination or harassment from other employees at [Business 1].  When asked about these problems at the hearing his evidence suggested that any problems he faced were minor and pre-dated his promotion to general manager about 10 years before his departure for Australia. While it is possible that the applicant’s Christian faith caused him some minor problems at some time during the 16 years he worked for [Business 1], I do not accept that he faced significant or continuing harassment or discrimination from his employer, other employees or anyone else because he is a Christian.

32. I believe that the applicant provided inaccurate information regarding his treatment while working for [Business 1], particularly in submissions to the Department, in an attempt to exaggerate the problems he faced because of his religion and to bolster his claim for protection.

    The applicant’s religious activities from 2000 to 2011

33. The applicant has consistently claimed that he attended [Church 2] after relocating to Dhaka. At the hearing he stated he had not been involved in any other religious or social work activities in Dhaka because were no appropriate groups to join or activities as people were too busy to participate.

34. In support of the former claim he provided a reference from the Pastor of the Church dated 28 December 2016, which states he attended services in [Church 2] while living in Dhaka.  At the hearing I noted that the spelling of the church’s name and the postcode appeared to be incorrect, which cast doubt on the authenticity of the letter. As the applicant pointed out, [Church 2] is sometimes spelled differently and the postcode on the letter appears to be correct. As discussed below, I continue to have some concerns regarding the contents of the letter. Nevertheless, I accept that the applicant attended church in [Church 2] during the time he resided in Dhaka.

35. The applicant also provided a reference dated 18 December 2016 from [Church 3] with his initial application. During the hearing I observed that he not lived in Barisal since 2000 and it therefore appeared that he could not have been involved with the Baptist Church. He said that he had continued to made donations to [Church 3] after 2000 and attended services once a month when he visited his family. I accept that the applicant attended church in [Church 3] when he visited his family. However, as discussed below, I have significant concerns regarding letter he provided.

36. The applicant also provided a reference from [Organisation 3] in Barisal dated 1 September 2016, which indicated that he was a regular member of the group at that time. When asked about this letter at the hearing, he said that he had ceased his activities with [Organisation 3] before he moved to Dhaka. I accept that the applicant may have been involved with [Organisation 3] before 2000. However, I doubt that the group would have provided him with a reference, which suggested that he was still involved some 16 years later.

    The applicant’s involvement in [Organisation 1]

37. For the following reasons, I am not satisfied that the applicant has provided an accurate or honest account of his involvement with the [Organisation 1] in [Locality 1].

    The applicant’s association with [Mr B]

38. At the hearing I asked the applicant how he had first become aware of the existence of the [Organisation 1]. After some confused discussion it was established that he learned of its existence when he encountered [Mr B] in the street in Dhaka in about 2005 or 2006. According to the applicant, they recognised each other because they had studied together in Barisal.  [Mr B] was aware that the applicant had been involved in youth work and invited him to visit the [Organisation 1] office in Dhaka. Following that encounter they spoke a few times but he did not recall seeing [Mr B] in person until about 2010 or 2011 when he contacted him to enquire about becoming involved in youth work.

1. In a letter dated 14 November 2021 [Mr B] said that he knew the applicant from [School 1] in Barisal. At the hearing he said that he had attended that school in Barisal for three years before leaving in 1985. He could not recall any contact with the applicant following that until the applicant asked for a letter of support in 2021. He said that he was aware of the applicant’s involvement in the [Organisation 1] because [Mr A] always informed him of developments in the group and advised him in 2011 that the applicant had become a volunteer.

2. When asked at the hearing to comment on the apparent contradiction between his claims and the evidence provided by [Mr B], the applicant maintained that his evidence was true.

3. The applicant’s wife also gave evidence at the hearing.  She said that she could confirm the applicant had been involved with [Organisation 1] and that he was involved in training activities and spreading the word of Jesus. She understood that he had worked in [Locality 1] because the [Organisation 1] headquarters were located there and he wanted to work in a rural area.

4. In a post hearing statement the applicant submitted that the apparent contradiction between his evidence and that provided by [Mr B] was minor and had arisen because [Mr B] had been nervous and confused at that hearing.  [Mr B] provided a post hearing statement in which he said while he was prepared for the interview and knew the subject matter well, he had been extremely anxious and his account of events may have been confused or misunderstood. He said that he had answered incorrectly when he said that he had not met the applicant in Dhaka, as they had met sometime between 2004 and 2009.

5. I acknowledge that honest witnesses may not recall isolated events which occurred years ago. I also acknowledge that witnesses may be nervous when giving evidence to the Tribunal. However, [Mr B] appeared before the Tribunal specifically to give evidence about the applicant and his post hearing submissions suggests he was aware of the material likely to be covered and had prepared to answer relevant questions. More significantly, he not only stated that he did not recall meeting or communicating with the applicant between about 1985 and 2016, when asked, he confirmed that my understanding of his evidence regarding this issue was correct. I do not accept that he provided inaccurate evidence at the hearing because he had been confused or nervous. I believe he changed his evidence following the hearing so that it would accord with the account given by the applicant and that he did so at the applicant’s request. I find this to be a strong indication that neither the applicant nor [Mr B] are honest or reliable witnesses.

6. In addition, I have concerns regarding the applicant’s evidence regarding his encounter with [Mr B] in about 2005.  I find it unlikely that he and [Mr B] would have recognised each other in the street if they the last time they had seen each other was 20 years earlier, when [Mr B] was [a teenager] and the applicant [age range]. I also find it unlikely that [Mr B] would have commented on the applicant’s involvement in youth work when they met in the street in 2005, as the applicant’s involvement in youth work must have begun sometime after they knew each other in Barisal, and according to his evidence ended some five years before they met in the street in Dhaka. While this alone would not have caused me to reject the applicant’s claims, considered in the context of the evidence overall I find it to be a further indication that he is not a credible witness.

7. In reaching this conclusion, I have considered the evidence given by the applicant’s wife. However, it repeats claims which I have found to lack credibility and I have given it little weight.

   The applicant’s decision to volunteer for [Organisation 1] in [Locality 1]

8. The applicant claims that from late 2011 until late July 2016 he left Dhaka after work on Thursday evening and travelled to [Locality 1] on the overnight bus once a month. After working in [Locality 1] he travelled [number] or [number] hours [in direction] to Barisal late on Friday or on Saturday to visit his parents before taking a bus back to Dhaka, a trip which took about seven hours.[8]

   [8] Limited information on [Locality 1] could be located, but it appears to be a small town or village about [number] hours by car from Dhaka. See Google Maps. The weekend in Bangladesh is Friday-Saturday.

9. I acknowledge that people may choose to engage in activities or work in a particular area for a range of reasons, some of which may seem strange to others. That said, I found much of the applicant’s evidence regarding the reasons he chose to volunteer in [Locality 1] rather than Dhaka or Barisal unconvincing.

10. At the hearing the applicant claimed he was not active in Dhaka because people in the city were too busy to participate in relevant activities and there were no appropriate groups for him to join. 

11. While the applicant may have had reasons for not becoming a volunteer in Dhaka, I do not accept that there were no appropriate groups for him to join because people were too busy to participate. It is clear from the independent evidence that there are a significant number of Christian groups in Dhaka, including groups associated with the Baptist church and [Organisation 3], both of which have a long history of social welfare involvement, including with youth, and that they accept volunteers.

12. At the hearing I asked the applicant about [Organisation 1]’s presence in Dhaka during the time he was active with the group. His responses were vague and confused. Initially he said that the group had never had a presence in Dhaka. As noted above, the letter from [Mr A] suggests that [Organisation 1]’s head office was in Dhaka in late 2016. When I advised that I had seen evidence which suggested that this was not correct, he said that the group had used a Dhaka address but they did not have an office there. Later in the hearing he acknowledged that [Organisation 1] had had a presence in the city during at least some of time he worked as a volunteer, but said that it was limited. Whether [Organisation 1] had a presence in Dhaka during the time the applicant volunteered for the group has no real significance for his claims. However, the applicant’s evidence at the hearing suggested either that he was not aware that [Organisation 1] had a presence in Dhaka, which I find implausible if he volunteered for the group for several years, or that, for some reason, he was reluctant to confirm that the group had a presence there. In any event, I find his failure to provide consistent and convincing evidence regarding this issue another indication that he is not a credible witness.

13. At the hearing I noted that there appeared to be a large Christian population in Barisal and asked the applicant why he had not looked for volunteer opportunities there. He said that [Organisation 1] did not have an office in Barisal.  I advised him that I had seen evidence which suggested that [Organisation 1] had a presence in Barisal during the years he was active in [Locality 1] and noted that there also appeared to opportunities to work with groups such as [Organisation 3] and programs associated with the Baptist church. He said that [Organisation 1] only had a small presence in Barisal, that Barisal people keep to themselves and do not go out to preach and that there were no openings for him in that city.

14. While specific information on the activities of the Baptist church and groups such as [Organisation 3] in Barisal between 2011 and 2016 was not located, both appear to have had a long involvement in youth, social welfare and religious activities. The applicant claims to have been active in youth work for [Organisation 3] and his church in Barisal prior to 2000. In these circumstances, I have difficulty accepting that there were no volunteer opportunities for the applicant in Barisal or that he would not have been welcomed by local groups given that it is his home city, that his family continued to reside there and that, according to his evidence, he worked with volunteer groups in the city prior to 2000. Again, while there is nothing necessary untoward about the applicant’s decision to work in [Locality 1] rather than Barisal, I am not satisfied that he reached this decision because there were no appropriate opportunities in or near Barisal. 

15. In post hearing submissions the applicant said that he had always wanted to work with rural youth and to be involved in evangelising, and [Organisation 1] offered these opportunities in [Locality 1], but not in Dhaka and Barisal, which did not do evangelising work. 

16. It is plausible that someone who wanted to work for rural youth would have chosen to work in [Locality 1] rather than Dhaka or Barisal. However, the applicant’s failure to mention this until after a hearing during which I expressed concern about his decision to work in a town where he had no previous connection and which was located a long way from his home suggests that this may have been an attempt to overcome problems with his earlier evidence rather than an honest explanation of his choice.

17. The claim that the applicant decided to work in [Locality 1] because unlike Dhaka, Barisal or other locations it offered him the opportunity to evangelise does not sit well with other evidence he has provided. In his initial statement he claimed that his parents who live in Barisal were involved in attempts to convert people to Christianity. He told the delegate that speaking to non-Christians was a personal decision. His evidence at the hearing was confused, but did not suggest that evangelising in the sense of speaking to non-Christians with a view to converting them to Christianity was part of the work of [Organisation 1] in [Locality 1]. He said that [Organisation 1] did not tell him to speak to non-Christians about Jesus and towards the end of the hearing claimed that he was the only one at [Organisation 1] who spoke to Muslims.  In these circumstances, there appears to be no reason why he could not have made a personal decision to evangelise in Dhaka or Barisal had he wished to do so. This also appear to be an attempt to overcome the concerns I expressed during the hearing rather than an honest explanation of his decision to work in [Locality 1].

18. I do not accept that the applicant decided to volunteer for [Organisation 1] in [Locality 1] because there were no appropriate volunteer opportunities in Barisal or Dhaka at the time. I find his failure to provide a reasonably coherent and convincing explanation for his decision and instead resort to claims which I find lack credibility another indication that he has not provided an honest account of his involvement with the [Organisation 1]. 

    The applicant’s activities in [Locality 1]

19. In a written statement provided with his initial application, the applicant said that [Organisation 1] worked with youth, women and children and was involved in a range of development activities. He also claimed that the group was preaching Christianity among non-Christians. He said that he went door to door talking to non-Christian youth about education, drug use and social development activities, but his main intention was to spread the love of Jesus and  talk about the Bible. He was harassed and warned to stop, but he did not take these warnings seriously because he was committed to talking about Jesus.

20. In support of these claims the applicant provided a letter signed by [Mr A], the director of [Organisation 1]. The date of the letter is unclear but it refers to the alleged attack on the applicant in July 2016. It states that the applicant had been a volunteer training organiser in [Locality 1] once a month since December 2011. He was part of a group whose main focus was to help youth better themselves and which took a great interest in organising workshops and training programs. He also went door to door to talk to young people of all faiths about their lives and problems and to suggest that they change their lives through social development programs and spiritual development. Eventually, he would let them know about Jesus and how the Bible leads to a better life.

21. During his interview with the delegate he said that he was the [Organisation 1] training organiser and made all of the arrangements relating to gatherings held by the group. He also said that he went door to door with one or two other volunteers to speak to young people of different faiths about Jesus and to tell them about gatherings where they could learn about things such as farming or fishing or drugs. Some people refused to listen and some harassed him. On one occasion someone pushed him and told him not to come to his house again. Despite realising that he could face problems he continued to do this work because he had made a vow to Jesus.

22. On 14 November 2021 the applicant provided a letter from [Mr B] which states that he joined [Organisation 1] as a volunteer in December 2011 as a training organiser who organised youth seminars, conferences and other programs. He was also involved in promoting Christianity and spreading the gospel door to door among non-Christians. At the hearing [Mr B] said [Organisation 1] had many volunteers, most of whom were students. Their main work was to share the gospel, but due to the difficulties involved in this work they first engaged in social welfare training and support. After he left Bangladesh [Mr A] told him that the applicant had joined the group. He said that the applicant was involved in collecting people from schools and churches and giving them training. Other people were also involved in this work.

23. At the hearing the applicant described his role variously as a training person, a youth consultant and an evangelical youth training officer. However, he did not claim to have been involved in organising meetings or training programs. He said that he worked with two or three other volunteers and their role was to encourage Christians to attend church, come to prayer meetings and other activities and to discourage young people from using drugs. The latter appears to have mostly taken the form of encouraging them to attend activities so they would not turn to drugs. People from other religions were welcome at these activities and he used to reach out to them.

24. Because [Locality 1] is a close knit village, he and the other volunteers went to people’s homes to talk to them. Christian houses and Muslim houses were side by side and they were usually open and they went to Hindu and Muslim homes as well as Christian homes. However, this stopped at some time due to harassment.  After that they just called out to people in the street.

25. I asked the applicant to tell me about his interactions with Muslims and other non-Christians. He said that most people wanted to listen to him, but some did not. He said that while [Organisation 1] told him to invite non-Christians to events, he was in [Locality 1] to work on social programs and the [Organisation 1] never told him to speak to non-Christians about Jesus. He said that he had spoken to Muslims about his faith, but that he had had never told them to go to church. He invited them to seminars. Most of the seminars were about leadership, but some were evangelical. Later in the hearing he said the main tenet of the group was the requirement to go out and bring people to Jesus and they hoped that people would come to the faith.  He did not know if anyone had converted to Christianity during the time he worked as a volunteer in [Locality 1].

100.   When asked about the harassment he faced, the applicant said that in mid-2015 three Muslims he did not know approached him in [Locality 1]. One of them spoke to him roughly and told him to stop speaking to Muslims. At the time he was speaking to some people about a seminar where they could learn about Jesus, but he stopped when the man abused him.

101.   The applicant described his role as a training person, a youth consultant and an evangelical youth training officer, but did not claim to have been in involved in organising meetings or training programs.  He said that he was told to gather people from a particular area to come to prayer groups and evangelical groups and other events. He did this by going door to door with two or three other volunteers. They encouraged people to attend a range of activities including prayer meetings and also tried to discourage young people from using drugs.  Non-Christians were welcome at these activities and some attended.

102.   Later in the hearing, I observed that it appeared that the applicant was the only person from [Organisation 1] to have been threatened or harmed by Muslims because of his work in [Locality 1]. He said that this was most likely because he was the face of the program. I observed that this seemed unlikely as he only volunteered once a month for one or two days and there were a number of local employees and volunteers. He said that he was the only person who spoke to Muslims and that speaking to Muslims was his main activity. As this appeared to be at odds with his earlier evidence, which suggested that other volunteers also spoke to Muslims and that most of his work involved speaking to Christians, I asked him to confirm that he was the only [Organisation 1] member who had spoken to Muslims and that speaking to Muslims was his main activity. He said that my understanding of his claims was correct. I observed that this appeared to be at odds with his earlier evidence. He maintained that he was telling the truth.

103.   I found the applicant’s evidence regarding his work for [Organisation 1] confused, sometimes contradictory and generally unpersuasive. In his submission to the Department he claimed that he was involved in organising events for the group, but made no mention of this during the hearing. He said that [Organisation 1] had not told him to speak to non-Christians about Jesus, but also said that the main tenet of the group was the requirement to go out and bring people to Jesus. His pre-hearing submissions suggested that he experienced ongoing harassment, but he only mentioned one occasion on which he was confronted as a result of his actions during the hearing. His description of his interactions with non-Christians was vague and unconvincing. At one time he said that he when he could no longer go to people’s homes he called to them in the street to attract their attention, which seems unlikely. The nature of his discussions with non-Christians is also unclear. While some of his evidence suggested that he spoke to them about Jesus, it did not suggest that his main activity was preaching the gospel door to door or in any other manner to non-Christians (at least not until he claimed that he spent most of his time speaking to non-Muslims at end of the hearing). At one time he summed up his activities by saying he had never suggested non-Christians go to church, but he invited them to seminars, most of which were about leadership but some of which were evangelical. In my view these problems indicate that the applicant has not provided an honest or accurate account of his activities in [Locality 1] between 2011 and 2016.

104.   I acknowledged that some of the matters raised above are relatively minor and that the passage of time and the stressful environment of providing evidence during a hearing may result in confusion and apparent contradictions, in my view not all of the problems raised above can be accounted for in this way. In particular, I find the applicant’s claims at the end of the hearing that he was the face of [Organisation 1] in [Locality 1], that he was the only member of the group to speak to Muslims, and that speaking to Muslims was the main focus of his work, totally lacking in credibility. Prior to making these claims he said that he had worked with another two or three volunteers and his evidence clearly indicated that much of his work was directed towards Christians. I believe he made this claim in an attempt to explain why other members of [Organisation 1] had not faced threats or harm because of their work for the group. I do not accept that speaking to Muslims was the applicant’s main activity in [Locality 1] or that he was the only [Organisation 1] member to speak to Muslims. I find his willingness to make false claims of this kind a clear indication that he is not a credible witness.

The problems faced by the applicant and his family in July and October 2016

105.   The applicant has consistently claimed that he was stopped [in] July 2016 by five men while travelling by rickshaw from the bus stop in Barisal to his parents’ home. One of them was armed with a knife. They told him that they were from JI and accused him of insulting Islam while working in [Locality 1], which was not true. Despite his denials they assaulted him and threatened to kill him.  He was rescued by local people. His attackers fled, but said that next time they would kill him. He was treated by a doctor and reported the incident to the police but they said that they could not do anything unless he could provide the names of his attackers or photographs.  He returned to Dhaka the following day and did not visit Barisal or [District 1] again before leaving Bangladesh.

106.   The applicant thought that he would be safe in Dhaka but [in] October 2016 his wife and daughter were walking home from church at 8 pm when their way was blocked by a vehicle. The people in the vehicle tried to take his daughter, but his wife held onto her hand and screamed for help. Some people responded to her cries and the vehicle drove off. At 11 pm that night the applicant received a telephone call from a man who abused him for being a Christian and said that he had been lucky to escape on two occasions but next time he and his family would be killed. The following day he took his family to his sister’s home in another part of Dhaka. He did not return to his home after that, but he continued to work.

107.   In support of the claim that he had been attacked by members of JI, the applicant provided the following:

·     Medical reports dated [July] 2016 from a doctor in Barisal which state that he had bruising and swelling to much of his body due to a physical assault.  No information on his assailants is provided.

·     A medical report dated [date] October 2016 which states that the applicant’s daughter was treated for swelling to her wrist.

·     A letter from [Mr A], Director of [Organisation 1], which states that the applicant was attacked near his parents’ home by a group of people believed to belong to a fundamentalist Muslim group. The [Organisation 1] believed he was attacked because of his work for the group and told him to hide and not return to [Locality 1] or Barisal.

·     A letter dated 18 December 2016 from the Secretary of [Church 3] which states that the applicant is a regular member of the church and it had come to the knowledge of the signatory that a few months earlier the applicant had been attacked by a fundamentalist Islamic group due to his Christian beliefs and because he had been speaking the word of Jesus Christ. It provides no further details of the attack.

·     A letter dated 14 November 2021 from [Mr B] which states that [Mr A] had told him that the applicant had been attacked and threatened by some Muslim extremists in July 2016 because of his religious activities towards non-Christian people. He had also heard about the attack on the applicant’s daughter.

·     A reference from the President of [a Christian organisation] of Australia dated [in] April 2017 stating that the applicant was associated with [Organisation 1] and was attacked because of this.

·     A reference dated 15 April 2017 from a senior Minister at [Church 4] dated 15 April 2017 which states that he had come to know of the assaults and threats the applicant had faced in Bangladesh.

108.   The applicant and his wife confirmed their earlier claims. When asked about the letters of support, he said that he had not been directly in touch with his former associates in Bangladesh. He said that his brother in Bangladesh obtained them and sent them to his Australian sister-in-law.

109.   I asked if the applicant knew of anyone else from [Organisation 1] who had experienced problems in Bangladesh. He said that [Mr B] had experienced problems before he left Bangladesh in 2011 and he had heard that some people in other areas had been attacked, but he did not know if anyone involved with [Organisation 1] [Locality 1] had experienced problems. I observed that it seemed unlikely that he would not have been aware of attacks on other members of the group. He said that he had not been in contact with [Mr A] or the volunteers in [Locality 1] after the incident in Dhaka in October 2016 because he was stressed and afraid.

110.   [Mr B] also gave evidence at the hearing. He said that [Mr A] had told him that [Organisation 1] volunteers faced problems in Bangladesh. I asked him to tell me about problems faced by volunteers in recent years. He said that [Mr A] had mainly told him about the attack on the applicant. I asked if anyone else had faced problems. He said that he himself had faced problems before he left the country, but he was unable to provide any information on more recent attacks. I asked if he could think of any reason why the applicant would have been the only one to experience problems recently. He said that he was not the only one and added that some Christians who had spread the gospel in the north had also faced problems. I asked again if he could think of any reason why the applicant was attacked. He said that perhaps it was because he came from the city.

111.   I advised the applicant that I was aware that some Christians face problems from time to time in Bangladesh and there had been a rise in Islamic extremism in parts of Bangladesh in recent years, but it was my understanding that JI was under significant pressure from the government, and neither they nor other Muslim extremists were likely to target Christians in the manner he claimed or for the reasons he claimed. He maintained that his claims were true and said that much of the information on these problems did not appear in the media.

112.   I acknowledge that Christians have sometimes been threatened by Muslims and have been victims of extremist violence in Bangladesh in recent years. I also acknowledge that insulting Islam or attempting to convert Muslims to Christianity can be triggers for this violence.  However, the violence which results appears to mostly involve an immediate reaction from local people, often in the north of the country.[9]  In my view the independent evidence does not suggest that Christians involved in development or social work activities carried out by a group such as [Organisation 1] in areas to the south of Dhaka are generally at risk of harm from members of JI or Islamic extremists, even if they offered services or support to Muslim people.

[9] See for example articles from Prime News Asia dated 3 March 2021, Asia Today dated 30 July 2021 and Open Doors December 2020 Report.

113.   As discussed above, I do not accept that talking to Muslims was the main focus of the applicant’s work or that he was the only member of [Organisation 1] to do so. At most his evidence suggests that he was one of a number of volunteers of a well-established Christian youth group who engaged in similar activities. There is no suggestion that any member of the group who was active at the same time as the applicant experienced more than very minor problems with local Muslims or that any of them were threatened or targeted by JI. I note that when asked, both the applicant and [Mr B] said that they were not aware of other members of the group being threatened or harmed. Both the applicant and [Mr B] were in continuing direct or indirect contact with [Mr A] and I have no doubt that [Mr B] and the applicant would have been aware of any serious problems faced by group members

114.   In these circumstances, I find the claim that members of JI were so incensed by the applicant’s occasional involvement in [Organisation 1] activities that they pursued him to Barisal in July 2016 and then to Dhaka in October 2016, some two months after he ceased his activities, far-fetched and implausible. I do not accept that he was attacked by JI members in July 2016 or that members of JI or anyone else attempted to kidnap his daughter in October 2016 or that members of JI threatened him by telephone in October 2016. I find that these claims were concocted by the applicant and his wife in order to support their claim for protection in Australia.

115.   As I do not accept that the applicant was threatened or attacked by JI at any time, it follows that I do not accept that he and his family were in hiding at his sister-in-law’s house from [date] October 2016 until his departure for Australia. 

116.   In reaching this conclusion I have considered the written and oral evidence from [Mr B]. I acknowledge that there is a group called [Organisation 2] which has a presence in [Country 2] and Bangladesh and appears to have previously been named [Organisation 1]. I also acknowledge that [Mr B] appears to have had a long association with the group. However, for the reasons set out below, I did not find him to be a reliable witness in relation to the claims made by the applicant.

117.   As discussed above, I believe [Mr B] altered his evidence regarding his contact with the applicant in Bangladesh so that it accorded with the applicant’s evidence on this matter. This alone casts significant doubt on his reliability as a witness, but it is not the only problem with his evidence.  I found much of his evidence at the hearing confused and unconvincing. He initially stated that spreading the gospel was not possible in Bangladesh, but changed his evidence when I pointed out that evangelising was not illegal. His evidence regarding the [Organisation 1] presence in Dhaka also changed when I noted that his original claim that it had not had a presence there appeared to be at odds with other evidence. In addition, he was unable to explain why his [social media] page said that he became director of [Organisation 2] in 2015, some three years before the group came into existence and why the financial report in the 2020 [Organisation 2] report appeared to suggest that the group received more money in donations from the teachers it employed than it provided to fund the schools it operated.

118.   I have considered the letters from [Mr A] and the churches in Bangladesh. However, they all purport to confirm claims that I rejected as untrue and could have been prepared by anyone with access to a computer. As noted above, the letter from the Barisal church describes the applicant as a regular member of the church some 16 years after he relocated to Dhaka. While he may have attended church in Barisal on visits to his family after 2000, I doubt that the local pastor would have described him as a regular member of the church in 2016. The fact that he also provided a very similar letter from the Barisal [Organisation 3], which also described him as a regular member of the group 16 years after he ceased his involvement with the group, casts further doubt on the genuineness of both letters. In these circumstances and in light of my findings on the applicant’s credibility, I find that these letters were all prepared at the applicant’s request and in accordance with his direct or indirect instructions I am not satisfied that the information they contain is true.

119.   Finally, I have considered the medical reports relating to the claimed attack on the applicant in July 2016 and his daughter in October 2016. As noted above, fraudulent documents of all kinds can be obtained in Bangladesh with relative ease. Given my finding on the applicant’s credibility and his willingness to obtain documents which are fraudulent or contain false information, I am not satisfied that these documents are genuine. In any event, even if I accepted them at face value (which I do not) they are of limited value as at most they suggest that the applicant was assaulted by someone in July 2016 and his daughter was treated for a swollen wrist in October 2016. 

The applicant’s religious activities in Australia and on return to Bangladesh

120.   The applicant claims that despite the risks involved he would continue his involvement in groups such as [Organisation 1] and would continue to proselytising to Muslims on return to Bangladesh because of his deep commitment to these activities. At the hearing I noted that according to his evidence he ceased his involvement with [Organisation 1] after being attacked and went into hiding when his daughter was attacked, and observed that this suggested he would not continue these activities if he returned to Bangladesh. He said he had only gone into hiding when his daughter was attacked and maintained that he would proselytise if he returned to Bangladesh.

121.   As I do not accept that the applicant was involved with [Organisation 1] in Bangladesh, it follows that I do not accept that he will continue that involvement if he returns to Bangladesh and there is no credible evidence before me which suggests that he had any involvement in proselytizing to non-Christians in Bangladesh.

122.   Since arriving in Australia the applicant and his family have attended [Church 4] and also been involved in [a Christian organisation] of Australia. According to the references they provided, in addition to attending church services, the applicant participated in volunteer activities aimed and helping less advantaged people in the community.

123.   At the hearing I asked the applicant about his religious activities in Australia. He said that he attended church but he did not have much involvement in other activities because his English was not good enough.

124.   [Pastor D], a Minister from [Church 4], gave evidence at the hearing. He confirmed that he had met the applicant in Australia and was unable to provide evidence regarding his situation in Bangladesh. He said that the applicant and his family attended the church regularly and that he was involved in volunteer activities such as the church’s food assistance program, which provided assistance to people outside the church community. He said that volunteers would speak to people about their faith while doing this work. He said that some church members talked to colleagues at work about their religion but he did not know whether the applicant engaged in these activities.

125.   I accept that the applicant attends church in Australia and that he has also participated in the volunteer social welfare activities of his church which may have involved speaking to non-Christians about his faith. However, it is clear from his evidence at the hearing that this was at most minor and occasional. In my view this does not suggest a deep commitment to proselytising to people who do not share his faith. While I acknowledged that the fact that English is not the applicant’s first language may have restricted his ability to proselytize in Australia, I do not accept that this would have prevented someone who strongly believed that proselytizing so important that he was prepared to place himself in harms way to preach to others from greater involvement in this activity in Australia. 

126.   I accept that the applicant would continue to attend church if he returned to Bangladesh. I also accept that he may participate in some social welfare activities conducted by his church or other Christian organisations which may involve some contact with Muslims. However, I am not satisfied that he has been involved in proselytising to Muslims in Bangladesh or Australia and I do not accept that he would proselytise to Muslims or any other non-Christians if he returned to Bangladesh.

FINDINGS OF FACT: CONCLUSIONS

127.   I accept that the applicant is a Christian and follower of the Baptist faith. I accept that he and other members of his family may have occasionally experienced some minor problems in Bangladesh because of their religion. I accept that he may have been involved in some social welfare activities as a volunteer for [Organisation 3] or his church in Bangladesh and that he has participated in community welfare activities provided by his church in Australia.

128.   I do not accept that the applicant was significantly underpaid or forced to work long hours by his employer in Dhaka because of his religion. I do not accept that he worked as a volunteer for the [Organisation 1] from 2011 until 2016. I do not accept that he was involved in proselytising to Muslims in [Locality 1] or anywhere else. I do not accept that he was assaulted by members of JI or anyone else in July 2016 or that members of JI attempted to abduct his daughter in October 2016. I do not accept that he faced any significant problems in Bangladesh because of his religion or for any other reason. I do not accept that he would become involved in proselytising or other religious activities which might be viewed as offensive or insulting to Muslims.

CONSIDERATION OF THE APPLICANT’S CLAIMS

Involvement with [Organisation 1] and promotion of Christianity

129.   As I do not accept that the applicant was involved with the [Organisation 1] prior to leaving Bangladesh at any time, it follows that I am not satisfied that he faces a real chance of experiencing serious or significant harm because of his past involvement or association with that group.

The applicant’s Baptist faith

130.   I accept that the applicant belongs to the Baptist church and that he will continue to practise his religion if he returns to Bangladesh. I also accept that while the rights of all religions are protected and the evidence suggests that Christians do not generally faced restrictions on their ability to practise their religion or face discrimination or sectarian violence, some do.  However, in my view the evidence set out above does not suggest that middle-class Baptists who reside in Dhaka or Barisal are generally at risk of experiencing any of these problems. According to the evidence, Christians from lower socio-economic strata are more likely to face problems and outbreaks of sectarian violence are more likely to occur in the north of the country. The applicant is reasonably well educated and held a management level position in Dhaka. There is no credible evidence before me which suggests that the applicant or any member of his family has been a victim of violence or threatened with violence in the past because of their religion. Nor is there any credible evidence before me which suggests that the applicant would engage in activities which would bring him to the adverse attention of Muslims in his community or Islamic extremists if he returned to Bangladesh.

131.   In considering the likelihood that the applicant would be a victim of religious violence in Bangladesh, I have noted the applicant’s submissions regarding the rise of Islamic extremism. I acknowledge that there has been some increase in these extremist views and activities in recent years. However, this has been met with strong action by the government against those involved, which reduced the level of violence. I also note that most of the leadership and many of the ordinary members of JI have been arrested and jailed, which has reduced their ability to act against anyone. In my view, the available evidence does not suggest to me that a rise in extremism means that Christians such as the applicant face a real chance of facing violence or other problems amounting to serious harm now or in the reasonably foreseeable future.

132.   I have also considered the claim that the applicant would not receive protection from the authorities because of his religion. As discussed in the country information section above, the authorities generally provide protection to Christians during times of sectarian violence. I do not accept that the applicant would be denied protection in Bangladesh because of his religion.

133.   After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Bangladesh now or in the reasonably foreseeable future because he is a practising Baptist.

Promotion of  Christianity and spreading the gospel to non-Christians

134.   The applicant claims that he would be at risk of harm on his return to Bangladesh because he is committed to promoting Christianity to non-Christians. As noted above, evangelising is not illegal in Bangladesh and some Christians are involved in promoting their religion, although proselytising to Muslims is likely to create problems in many areas. It appears that Christian groups often engage in social and welfare support programs in the hope that these good works will eventually attract people to their faith rather than using more direct means. The evidence does not suggests that these activities are likely to create problems.

135.   In any event, there is no credible evidence before me which suggests that the applicant was actively involved in promoting Christianity to non-Christians directly or by engaging in good works prior to his departure from Bangladesh or while living in Australia. In these circumstances, I do not accept that he would seek to spread the gospel or promote Christianity to non-Christians directly or indirectly if he returned to Bangladesh.

136.    I am therefore not satisfied that there is a real chance that he would experience serious or significant harm if he returns to Bangladesh now or in the reasonably foreseeable future.

Political opinions likely to be imputed to the applicant

137.   It has been submitted that the applicant would be at risk of harm if he returned to Bangladesh because parties which promote Islam as a state religion, such as Jamaat-e-Islami, would view him as an opponent, presumably because of his involvement with [Organisation 1] and his Baptist religion. As I do not accept that the applicant was involved with [Organisation 1], it follows that I do not accept that anyone will impute political opinions to him as a result of this. Furthermore, while as noted above, JI and other extremist groups have been responsible for attacks on Christians, in my view the evidence does not suggest that Christians are generally at risk of harm from harm from JI or other Islamist groups because they were viewed as opponents of the group.

138.   I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Bangladesh because he would be viewed as an opponent of JI or any other Islamist group or party.

Membership of the particular social group of Baptist Christians promoting Christianity and spreading the news about Jesus Christ to Christians and non-Christians

139.   I am far from convinced that Baptist Christians promoting Christianity and spreading the news about Jesus Christ to Christians and non-Christians constitutes a particular social group. In any event, this claim does nothing more than repeat the claim that the applicant is a Baptist who engages in promoting Christianity. As discussed above, I do not accept that the applicant faces a real chance of experiencing serious or significant harm for these reasons.

Mental health issues

140.   At the hearing I advised the applicant that I accepted that he was currently suffering from anxiety and depression, but it was not clear whether he was claiming that he would be at risk of harm on return to Bangladesh because of this. He responded that he was mentally devasted because of the problems he had faced in the past, but this did not mean he was unable to provide evidence regarding his case and he was trying to give a clear account of his problems. I observed that some applicants feared that they would face problems on return to their country of origin because they were suffering from mental health issues and asked if he feared harm for that reason. He said that he did not know if he would receive in Bangladesh of the same standard as he had received in Australia. When asked if he wanted to add anything he said that when he thought about returning to Bangladesh he was fearful. Despite having ample opportunity to do so neither he nor his representative made further submissions on this issue.

141.   Mental illness may give rise to a claim for protection in cases which involve discriminatory conduct such as denial of treatment for one the reasons in s.5J(4)(c) and cases in which the applicant is may face serious or significant harm from the authorities or members of the community because attitudes towards mental illness in their country of origin. Mental health issues may also be a relevant consideration in cases where an applicant’s mental illness would make them more vulnerable to harm for other reasons such that they faced a real chance of experiencing serious or significant harm on return. However, the mere fact that someone may not be able to access care or the same level of care as they have received or might receive in Australia because services are non-existent or limited in their country of origin is usually not sufficient to establish a claim for protection.

142.   According to brief advice from DFAT, despite considerable need, there are few support services available for those suffering from mental health disorders in Bangladesh. There are some private clinics in Dhaka, but they are limited and expensive. The situation is particularly difficult in rural areas. A significant stigma attaches to people with mental health conditions.

143.   In the applicant’s case he does not claim that he would be denied or unable to access any treatment for his depression in Bangladesh. Nor does he claim that he would face discrimination or harm from the authorities, members of the community or anyone else because he is suffering from depression and anxiety or because his mental health issues would make him vulnerable to serious or significant harm in Bangladesh for some other reason. The only issue raised at the hearing was the possibility that he might not receive the same level of care as he had in Australia. I note that according to his evidence at the hearing he had attended only one counselling session for his depression in the two years prior to his attendance at the hearing.

144.   In my view there is nothing in the evidence which suggests that the applicant would face serious or significant harm such as being denied treatment or facing ill-treatment, serious discrimination or harassment because he suffers from depression and anxiety.  I am not satisfied that there is a real chance that he would suffer serious or significant harm on return to Bangladesh because he suffers from depression and anxiety.

Conclusions

145.   After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Bangladesh now or in the reasonably foreseeable future.

146.   I am therefore not satisfied that he has a well-founded fear of persecution in Bangladesh for any of the reasons set out in s 5J(1) or 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 he will suffer significant harm.

CONSIDERATION OF THE CLAIMS MADE BY THE APPLICANT’S WIFE AND DAUGHTER

147.   The applicant’s wife and daughter were included as members of his family unit with no claims of their own in his initial application. In later submissions it was claimed that they would also be at risk of harm from extremists because of their association with the applicant and because of their Christian religion.

148.   As I do not accept that the applicant was of adverse interest to anyone in Bangladesh as a result of his activities with [Organisation 1], it follows that I do not accept that his wife and child face a real chance of suffering serious or significant harm for that reason.

149.   As discussed above, I do not accept that practising Christians are at risk of harm merely because of their religion. There is no credible evidence which suggests that the applicant’s wife and daughter have faced serious harm or discrimination in the past because of their religion or that they have been involved in activities associated with their religion which  might attract the adverse attention of Muslims in general of extremists in particular.

150.   In his submissions to the Department the applicant said that his daughter had been greatly affected by the attempted kidnapping in 2016 and while she was greatly relieved to be in Australia she continued to face some problems and he was seeking mental health counselling for her and the whole family. As discussed above, I do not accept that the applicant’s daughter was the victim of an attempted kidnapping in Bangladesh and I therefore do not accept that she was traumatised because of this. While the applicants have provided evidence that they sought and received some counselling for depression and anxiety in Australia, not evidence has been provided which suggests that their daughter was suffering from anxiety or other problems or that she was treated by anyone for o these or any other problems.

151.   When asked about mental health issues at the hearing the applicant said nothing about any fears relating to his daughter. The applicant’s wife she feared returning to Bangladesh and these fears related not only to her mental health but to her daughter’s life and their security on return. No further information or submissions were provided regarding any fears relating to mental health issues at the hearing or in written submissions provided following the hearing.

152.   I acknowledge that issues related to mental illness can give rise to a claim for protection, that many people suffering from mental health issues in Bangladesh may lack treatment due to lack of service and some may face problems due to the stigma associated with mental illness. However on the evidence before me I am not satisfied that the applicant’s daughter suffers from a mental health issue or that there is a real chance that the applicant’s wife would face serious or significant harm on return to Bangladesh for any reason associated the fact that she is suffering from depression and anxiety.

153.   There is no suggestion that the applicant’s wife or daughter fear harm on return to Bangladesh for any other reason. On the evidence before me, I am not satisfied that either of them faces a real chance of experiencing serious or significant harm for any reason if they return to Bangladesh.

154.   After considering the applicant’s wife’s claims and the claims made on behalf of the applicant’s daughter individually and cumulatively, I am not satisfied that either of them faces a real chance of experiencing serious or significant harm for any reason if they return to Bangladesh now or in the reasonably foreseeable future.

155.   I am therefore not satisfied that either of them has a well-founded fear of persecution in Bangladesh for any of the reasons set out in s 5J(1) or that 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 that they will suffer significant harm.

SECTION 438 ISSUES

156.   On 20 May 2020 the Department forwarded a copy of an allegation which was received in late February 2020.  It states that all of the applicant’s claims are false and all of the supporting documents provided are fraudulent.  The delegate notified the Tribunal that disclosure of this material would be contrary to the public interest as it would enable the applicant to ascertain the identity of a confidential source of information.

157.   At end of the hearing I advised the applicant of the notification and the allegations made against him. I waited until the end of the hearing to do this as I was concerned that he might be upset or distracted by this information and it might impact on his ability to provide evidence.

158.   I advised that him that I was aware that allegations of dishonesty or fraud were made for a range of reasons, including personal animosity, but nevertheless I needed to put this information to him and provide him with an opportunity to comment. I put the allegations to him in accordance with the s 424AA provisions. He opted to respond in writing.

159.   The applicant’s representative asked if the certificate was valid. I advised him that the allegation identified the source of the information and in my view it was valid.

160.   In his written response the applicant said that he believed that these allegations had been made by his sister-in-law’s former husband. According to the applicant and his sister-in-law, her ex-husband was a violent man who blamed the applicant’s presence in their home for the breakdown of his marriage and he had made false allegations regarding his claim as a means of attacking his wife and the applicant.

161.   The applicant also stated that he had not been told of the date on which this complaint was received and this made it difficult for him to respond. I do not accept that lack of this information impacted on the applicant’s ability to respond. The applicant had ample opportunity to request information on the date of lodgement and if he had done so it would have been provided. I note that at the hearing his representative requested additional information on other matters and time to provide additional submissions. Both these requests were granted.

162.   I accept that the person who made this report to the Department may have been motivated by a desire to harm the applicant. However, the fact that this act may have been motivated by malice does not necessarily mean that the information provided is untrue.  In the applicant’s case, as discussed above, I do not accept that his claims are true and I believe the documents he provided are fraudulent or contain false information. However, I arrived at these conclusions for the reasons set out above. The allegations made to the Department merely state that the applicant was dishonest. They contain no detail or supporting evidence which could be relied on when assessing the applicant’s claims and I have given them no weight in my consideration of his case.

1. There is also a document on the applicant’s file which purports to notify that copies of the [Organisation 1] [social media] pages downloaded by the delegate are covered by s 438(1) as they are Department working documents. The documents in question are publicly available and do not appear to contain any information regarding Department work practices. In any event, it has been established by the Federal Court that the fact something is a “working document” is not a sufficient basis for the public interest immunity under s 438. I find this notification to be invalid. I note that the pages in question are not central to the applicant’s case and that they were mentioned in the delegate’s decision and discussed during the hearing.

   CONCLUSIONS

2. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

165.   The Tribunal affirms the decision not to grant the applicants protection visas.

Roslyn Smidt
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.

…