1710576 (Refugee)

1710576 (Refugee) [2022] AATA 4136 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710576
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Meena Sripathy
DATE:7 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 October 2022 at 12:18pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – relationship with married son of prominent politician – rejection after pretended pregnancy, and ostracism and threats by his family, community, political thugs and Muslim fanatics – blamed by own family for recent death of mother – single woman and gender-based violence – credibility – inconsistent claims and evidence – personal details of son, political affiliation of father and circumstances of relationship – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 1 February 2017. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant’s claims that she was in a relationship with a married man, and also did not accept she was a member of a particular social group as claimed, being ‘single women who have relationships with married men’. As a consequence the delegate was not satisfied the applicant faced a real chance of persecution upon return to Bangladesh for one or more of the reasons specified in s5J(1)(a) of the Act, or that she faced a real risk of significant harm for the purposes of s36(2)(aa).
The issues in this case are whether there is a real chance, if the applicant returns to Bangladesh, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Bangladesh, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Evidence before the Department
In the application form the applicant provides information that she was born in [year] in Khulna, Bangladesh and is a Bangladesh national by birth. She indicates her religion as Muslim but she is not practising, and her occupation as student. She indicates her relationship status as never married or in a de facto relationship. Her father is deceased, and mother is a widow. She indicates she has two brothers who are Bangladeshi citizens and a sister who is an Australian citizen. She provides details of past employment from 2014 to 2016 as [an Occupation 1] for [Employer 1]. She commenced but did not complete a Bachelor of [Subject 1] following her secondary education. She provided details of four addresses in Dhaka prior to coming to Australia.
In response to the questions for seeking protection the applicant provided the following information:
·Her life has been devastated by local Muslim fanatics, neighbours and her de facto’s family since her de facto relationship with a man and ‘false pregnancy’ was disclosed. She had to leave her country to save her life and the social status of her family.
·Her life was turned upside down when she tried to test her love of her partner by pretending she was pregnant by him and he became furious and rejected her. In desperation she sought help from her friends to try and reconcile and convince him to marry her. She was also betrayed by some classmates to whom she divulged her private issue. They leaked it to her university campus which caused her a lot of social pain and frustration.
·She was ostracised in the Muslim community and her widowed mother and brothers were targeted by fanatics. The local mosque community became furious with her.
·Her boyfriend was the son of a powerful political figure who is [an office holder] in the current administration. He was married but he played with her and she did not understand. He assured her he will divorce his wife and marry he and she trusted him. In the end he turned on her and plotted to get rid of her if she forced him to marry her. His parents sent a threat to her mother.
·She was humiliated and threatened by the [office holder]’s pet hoodlums and political thugs.
·She fears for her life is she returns to Bangladesh. She will never be able to lead a normal life as her boyfriend and his family will try and kill her to save their dignity. They are afraid she will initiate a case under Women and Child abuse law against them, even though she never thought or dared to do so as she is from an ordinary non political family who are vulnerable in a fanatic and fragile society in Bangladesh.
·She would be socially ostracised and no one will treat her like other women in the society. Even her distant family and friends won’t accept her anymore. It would be a big shame for her siblings, uncles and aunts. They have already been disgraced and insulted because of her sexual relations outside of marriage and it would be worse if she were there in the society.
·Her brother’s business in Dhaka is also under threat because her boyfriend and his family are politically strong as the Awami League is currently in power. So if she were to return to Bangladesh not only her family but members of her family would be endangered.
·No matter which political party is in power or which part of the country she lives in she will be discriminated against and treated as a slut. Each and every moment would be disgraceful for her in Bangladesh.
·She claims her life was threatened by her former boyfriend’s family and their political leaders. She indicates she will describe this in full in a forthcoming statement how she was humiliated and threatened by the [office holder]’s pet hoodlums and political thugs.
·She claims she tried to seek help from the authorities but they denied her rights and harassed her instead. They rejected to register her General Diary for protection application.
·She claims she would have difficulties to obtain employment, operate a business or obtain accommodation from a landlord. In the past she was forced to leave her bob and dropped out of university.
·She cannot except even a minimum level of protection from the current administration or police. Women and children are often the soft victims in this religiously fanatic society.
·She requests her claims to be considered under the categories of particular social group, political opinion and religion.
The applicant was interviewed by an officer of the Department on 10 April 2017. A copy of an audio recording of this interview is included in the Department file, and the delegate’s decision record includes a summary of information she provided at the interview. The Tribunal has listened to a recording of the interview.
The Tribunal notes, despite referring to a further detailed statement, no further information to evidence was submitted to the Department.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 4 March 2022 via telephone hearing and 4 October 2022 in person. The applicant was invited to participate in a video hearing on 4 March using the MS Teams platform, following several postponements at her request. The Tribunal exercised its discretion to hold the hearing by remote means given the circumstances of restrictions imposed during the COVID-19 pandemic, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. On the day of the hearing the applicant informed the Tribunal that her mobile phone was damaged the previous day in the rains and the alternative device she had did not have a camera. The Tribunal asked if she wanted to proceed that day or adjourn to another day to allow for a video or in person hearing. She indicated she was happy to proceed with the hearing via audio link only. The Tribunal also invited the applicant to a further hearing in person on 4 October 2022. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Evidence at 4 March 2022 hearing
The applicant provided details of her current address and living arrangements. She lives with her sister and her family comprising her sister’s husband and [age] year old twin children, and their mother. They have been at the current address since mid 2020 and prior to that they all lived together at a different address. She has lived with her sister and mother continuously since arriving in Australia. The applicant is working casually at a [workplace] close by. She relieves other staff there and her hours and income vary from week to week. She is not paying rent to her sister. Her sister and brother in law both work. Her mother is very unwell. She receives [treatment] at home four times a week. She was receiving [treatment] at hospital three times a week before. The applicant’s sister and family are currently in Bangladesh as her brother in law’s father passed away. They left last week and are due to return next week. They previously travelled to Bangladesh in 2019.
The applicant has no other family members in Australia. Her father died in 2012. She has two brothers, both are married. One brother had a business in Bangladesh but in 2017 he moved to [Country 1]. His wife obtained a student visa and he travelled as her dependent. They remain there since then and have children born there. Her other brother is in Dhaka. He is married since 2008 but has no children. He was employed as a manager in a [company] but lost his employment around 2016 and has not been employed since then. He lives in the family property and lives off the family resources. The applicant said their family is wealthy and have properties and assets.
The applicant confirmed the address history provided in the application form, and details of her past employment and education. She indicated she lived with her family in various addresses in Dhaka, up to the final year prior to coming to Australia when she lived at her brother in law’s father’s home because of the problems she was having at that time as she was ‘in hiding’ from then.
Regarding her education, she said she started her Bachelor of [Subject 1] at [College 1] and then changed to [University 1] but she did not complete the course because of the events that occurred in 2015 and 2016 that led her to leave the country. She worked part time at [Employer 1] company from May 2014 up until she came to Australia.
Apart from her travel to Australia in 2016, she had previously visited Australia in 2013 to see her sister who was here since 2005. She travelled here on her own passport which expired in 2017. She renewed her passport in Australia in 2018, by posting an application to the embassy in Canberra. She had no issues renewing her passport.
The applicant confirmed that she came here on a visitor visa, to support her sister who was having a complicated pregnancy and subsequently gave birth to twins. She was also escaping from her situation in Bangladesh. She came with her mother, who then had a heart attack and complications with her health after arrival. Her mother has a pending visa application of her own.
In Australia she has completed several Certificate level courses in [Subject 2] and currently is studying for a [Subject 3] certificate.
The Tribunal asked the applicant about the circumstances that led to her leaving the country and making this application. She met a man at her friend [Ms A]’s wedding in early 2015. His name is [Alias 1] but this is a nick name. The applicant hesitated to provide further details and the Tribunal explained that it must assess whether it accepts her claims and it is a matter for her to provide enough information for the Tribunal to consider. Noting the delegate was not satisfied as to the truthfulness of her claims due to the lack of specific information, it would urge her to be more specific and detailed in her responses. Following this, she provided the following. His official name is [Mr B] and he is the son of a very influential and powerful person in the current government, [Mr C] who is [an office holder] in the government. However her brother told her that from 2018 (or 2020), she is not certain, he is no longer [an office holder] in this government. The Tribunal asked why not. She said she does not know the details, only that her brother told her he no longer holds [an office] position. Later she said she believes he may have lost in a recent election. Despite this the applicant believes that he is still a very influential and powerful person because he is closely involved in the Awami League party and government.
The Tribunal tried to explore with the applicant why she believes this is so given she does not appear to have detailed knowledge about him. In response she repeated that the Awami League is very powerful and he is in that party so he is powerful. She said in addition to his father, [Mr B] himself is also very connected to the leader of the Youth League of the Awami League named [Mr D], they were good friends.
She provided the following description of what happened between them. He flirted with her at the wedding and she flirted back. They exchanged phone numbers and he started calling her. He asked her out and she agreed. Initially they met in his car and they would go for long drives. She started to fall in love with him. She knew he was the son of [Mr C] and that he was powerful. She knew he mixed in rich and powerful circles and was always accompanied by minders. The applicant said she did not tell anyone in her family about it at this stage. [Mr B] also asked her to keep it secret because he came from a conservative religious family. He assured her in time he will tell his family and introduce her to them. She believed him and continued to meet him. It became more frequent. He would pick her up and take her to restaurants and for lunch. The Tribunal put to her this appears to contradict her claim that he asked her to keep it secret if he was taking her out publicly. She said that because he is rich and powerful they have VIP rooms in restaurants so they would go there. The applicant said she conducted the relationship without the knowledge of her brothers and family and was able to do o because she was a student and could make excuses about attending coaching classes, or work.
She did not even tell her friend [Ms A] until she came to know because she was with her when he rang one day. This was in or around March 2016. The applicant confided in [Ms A] that she has seeing [Mr B] who she had met at her wedding. [Ms A] told her then that he is married. The applicant did not believe her and asked [Mr B] if it was true. He denied it and told her he was single as he had indicated to her at the beginning. Following this the applicant asked her uncle (on her mother’s side) if he knew if [Mr B] was married. She did not reveal her involvement with him at this time. The uncle told her he believed he was married. The applicant confronted [Mr B] again and he denied it.
After this the applicant discussed it with two friends and they came up with the idea that she tell him she was pregnant and this would prompt him to agree to marry her. She decided to do this because pregnancy is a big thing in their culture and she thought it would be a test of his intentions towards her. But when she told him that she was pregnant his reaction shocked her. He told her he did not want to marry her and told her to have an abortion. At this point he confirmed to her he was married. Her reaction was that she would not get an abortion and she wanted to marry him. She told him that if he did not she would tell everyone. This is when all her problems began.

The Tribunal asked the applicant when she told her family about him. She said she told her mother and brothers around this time when she came to realise he could be married. Her brothers were very angry with her and did not want to talk to her. Her mother was angry but she also supported her.
The applicant confirmed she was never pregnant. She did not see [Mr B] after this, but he did call her to make threats. He was concerned about their relationship becoming public and affecting his marriage and he wanted to ‘get rid of her’. He sent goons on his behalf to harass and intimidate her and her family members. They tried to go to the police about it. Her mother got support from her sister’s husband (the applicant’s uncle) to lodge complaints with the police but this was to no avail. The police refused to take any complaint when they heard who it was about. They told her if she comes back again they would file a complaint against her. Goons were sent to her house and they spit on her mother.
She suffered an accident around this time and believes it was connected with this. She was in the market in a three wheeler and it was hit by a car. She had her [body part] in plaster. The Tribunal noted that this was not mentioned in her written application or department interview and it may have concerns she is adding it now to strengthen her claims. She said at that time she was very stressed and overwhelmed and not thinking straight. It was close in time to all these events and her mother had just had a heart attack and was very ill. Her mental state was not good at this time.
The Tribunal asked if she had any evidence of this accident and her [body part] in plaster. She said she doesn’t have it with her but can try and get it. She said she had a relative who treated her at the time who gave her prescriptions for medicine.
Around this time her sister was applying for a visa for her anyway as she had many complications with her pregnancy and needed help. They did not want to stress her any further so she did not discuss any of this with her sister. Only her brother in law knew because her brother contacted them when she told them. Her brother in law offered his father’s place for her to ‘hide’ in this period. They only told her sister after she came to Australia.
Apart from these incidents, her brothers’ were also affected. The brother who had a business received a threatening letter telling him that if his sister turns up they will kill her. Her other brother lost his employment around this time because of the rumours and bad things being said about her. These rumours were also at her work and eventually in around September she left her employment because she could not tolerate it anymore. The Tribunal asked if she was working at the time she made her Visitor visa application. She said she was working then but left afterwards because of this issue.
The Tribunal asked if she has had any contact with [Mr B] since coming to Australia. She said she has not. But she said her brothers did. The one who is now in [Country 1], received the threatening letter in 2017 after she had left, and the other brother still gets harassed about it, as recently as several months ago.
The Tribunal asked why they would be harassed after so much time? It put to her given the time that has passed why is she afraid of these people now. She said she still fears they will kill her. She referred to his friend [Mr D] who has a history of his own that is frightening. She said he killed his own wife in 2014 after a similar situation of having been involved in a relationship not supported by his family. He has not been held responsible to this day for this. She fears this man and the whole Awami League because this is what they are capable of. Even if his father is no longer in government he has their power because he is well connected.
The Tribunal put to the applicant, that a brief search of the internet during the hearing indicates that [Mr C] is not an Awami League MP he belongs to [a different political party]. It invited her comment on this and put to her that it may detract from the credibility of her claims. She said she does not know because she does not follow politics but she knows he is well connected with Awami League and they are very close to Sheik Hasina. [Mr D] who is [Mr B]’s good friend is a relative of Sheik Hasina and also very well connected.
The Tribunal asked if, apart from this issue, she has any other reason to fear harm upon return. She said she has her father’s property and money there and but for this she has no reason not to return. The Tribunal asked how her sister and family have been able to return without concern for their safety if these people are as powerful as she claims. In response the applicant said they have no issues against them, and they have been outside Bangladesh since 2005 so are not known to anyone. The issue is about her personally. The Tribunal noted that this appears to contradict her claim that they have continued to harass her brother. In response she repeated that her sister and brother in law have been outside Bangladesh since 2005.
The Tribunal asked if she has had any other impact on her life here. She said she does not mix with the Bangladesh community here because some people know. She remains single because it is difficult for her to finds someone to marry her given what happened.
The Tribunal asked whether she can live elsewhere in Bangladesh away from Dhaka and be safe. She said it is a small country and they will find her and kill her wherever she goes. It asked her if she goes back would she seek to make public her relationship with this man. She said she does not think of going back, but in any case she would not dare to because they would kill her.
At the end of the hearing the applicant sought additional time of 4 weeks to provide further supporting evidence.
On 1 April 2022 the applicant wrote to the Tribunal to seek an extension of time for a further 4 weeks to provide further information on the basis of ill health. She submitted a letter from [Hospital 1] confirming her ongoing admission as an inpatient since 17 March 2022. The Tribunal agreed to her request for a further extension of time to the end of April to provide further information.
On 28 April 2022 the applicant contacted the Tribunal requesting further extension of time to the end of June 2022 to provide the post hearing submissions, on the basis of continuing ill health. The Tribunal responded by informing her that no decision would be made before 31 May 2022 and inviting her to provide any further information she seeks to rely on before then.
On 29 July 2022 an officer of the Tribunal contacted the applicant to advise her a decision would be made soon and gave her a final opportunity to provide any information prior to 1 August 2022. On 31 July 2022 the applicant sent an email to explain that she has further documents to submit, which are in the Bengali language and she is awaiting translation of these, however the translator is delaying return of the documents. She requested further time. The Tribunal undertook to make no decision before 22 August 2022.
On 19 August 2022 the applicant wrote to the Tribunal again, advising of the recent death of her mother [in] August 2022, and attaching as evidence, a NSW Death Certificate. She stated that her siblings and relatives are blaming her as being the cause of her mother’s death and have ‘turned the face to her.’ She stated that she requests some time to mentally settle down and get back to the Tribunal.
Due to the passage of time and events that had occurred, and her above email, the Tribunal invited the applicant to a further hearing in person on 4 October 2022.
Hearing 4 October 2022
The applicant confirmed that she was still living at the same address with her sister, brother in law and their children.
The Tribunal asked the applicant to clarify her family composition, noting that the children named in the copy of her mother’s death certificate she provided did not correspond with her previously provided evidence, specifically it referred to two siblings not previously mentioned. She explained that [Mr E] and [Mr F], named as children on the certificate were ‘adopted’ sons of her late mother. She explained that they were included in the death certificate by her sister to facilitate possible inheritance claims relating to the mother’s property back home. [Mr F] is already deceased but [Mr E] is alive and lives in Dhaka but she has no contact with him. The applicant stated that she did not grew up with either of them, only the two brothers and sister she previously mentioned.
The Tribunal asked the applicant to elaborate on the statement claim in her recent email that her family blame her for her mother’s death, noting that the death certificate and her earlier evidence indicate she had numerous health issues which are referred to as her cause of death. She said they blame her for causing stress to her mother and her brothers blame her for her mother being unable to return to Bangladesh. They were unable to see her since she came to Australia and now she has died here. She said her sister and brother in law in Australia have also now turned on her. The Tribunal put to her that she indicated she is still living with them and this would appear to contradict her claim and suggest they are still supporting her. She agreed she is living with them but said the situation is not good. They barely speak to her and she is not involved with the children as before. When asked why she repeated that they blame her for the mother’s death.
The Tribunal put to the applicant that in her earlier evidence she said it was her brother in law who supported and assisted her in Bangladesh and she stayed with his father and therefore this claim appears to contradict that. The applicant agreed she said this, but now even he has turned on her. He is not happy with what she did there. He considers her a ‘bad girl’ who caused her mother’s death. The scandal of a girl is big news in Bangladesh and this is why she fears return.
The Tribunal noted that it had provided numerous extensions of time for her to provide further evidence following the last hearing and asked her what information she was seeking to provide. She said after the last hearing her brother in law arranged for her brother to send the threat letter he received and her brother in law was getting it translated. Now he is refusing to give it to her. She cannot get it from her brother because he is upset with her. She has no further evidence to provide.
The Tribunal put to the applicant information it obtained on the internet indicates about [Mr C] indicates he is a Bangladeshi politician who, contrary to her claims, belongs to the [Political Party 1] not the Awami League. It put to her that the inconsistency between her evidence and this information may contribute to the reasons the Tribunal finds her claim to be lacking in credibility and invited her to comment or respond.
In response the applicant said she was involved with this person, [Mr C]’s son, [Mr BB] and he is a prominent politician and very close to Sheikh Hasina. She repeated her claim that the son, [Mr BB], is also a very good friend of [Mr D] who is also powerful with the government.
The Tribunal noted the applicant previously referred to the name of her ex-lover as [Mr B] but now refers to him as [Mr BB]. She disputed that and said she referred to him as [Mr BB] previously and suggested the Tribunal may have heard this incorrectly over the telephone line. The Tribunal said it would consider this explanation.
The applicant indicated she does not know what position or status [Mr C] has now, or even whether he is a current MP but she still fears harm because she believes, even if he is no longer [an office holder] or an MP, he would still be very close to people in power. Everyone would have got to know about her and consider her to be a ‘slut’ and she cannot return to Bangladesh for this reason. She repeated her claim that her brother’s office came to know about it and he lost his job. She gave as an example of her fate, the situation of a person named ‘Tanveer Abraham’ who is the son of the owner of Basundhara Group of Industries. He had an extramarital affair and the woman was subsequently found dead, and the police attributed her death to suicide. The applicant fears the same fate.
The applicant fears, because of the scandal she was involved in, she will not get an inheritance, her family have abandoned her and she will face difficulty getting any accommodation or employment in Bangladesh. Even though she studied to HSC level, she never finished her degree and she will not be able to get a job at [Employer 1] where she worked previously because of her history. She fears harassment, including sexual harassment and bullying as a woman on her own in Bangladesh.
The Tribunal discussed with her that, first it must consider whether it accepts her claims about the affair, and then, even if it were to accept her claims that she had this affair, it may find any harm she fears from her former lover or his associates is for a personal reason and not for any one of the five specified reasons as required by the refugee definition. It indicated if it found she was not a refugee it would consider her claims under the complementary protection definition, which refers to ‘significant harm,’ a term specifically defined in the Act to mean certain kinds of harm. The applicant stated that she fears significant harm as a single woman in Bangladesh.
FINDIINGS AND REASONS
Nationality
On the basis of the copy of the Bangladesh passport on file, and her oral evidence that she has since renewed it, the Tribunal accepts the applicant is a national of Bangladesh and considers Bangladesh is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal takes the above principles into consideration in making its findings below.
The applicant fears harm upon return to Bangladesh by an individual she claims to have had a relationship with, who rejected her, and/or his family members or associates. She claims this individual is the son of a senior politician in the ruling government of the Awami League in Bangladesh who is wealthy and powerful. Before the Department the applicant declined to name the individual or his politician father. In her evidence to the Tribunal the applicant named him at the first hearing on 4 March 2022 as ‘[Mr B]’, son of [Mr C] whom she claimed was a powerful former [office holder] in the Awami League Party. At the second hearing on 4 October 2022, she stated the name of her former lover as ‘[Mr BB]’. She claims she tried, with the assistance of a relative, to make a complaint to the police about threats made against her but they declined to accept it when they realised who the person she sought to complain about was. She claims that her brother received a threatening letter stating she would be killed if she was found, and her brother lost his job because of the rumours about her situation that were going around. She has not been able to provide any evidence of this letter. The applicant claims her family do not, and will not, support her if she returns and fears harm as a single woman upon return to Bangladesh.
The Tribunal makes the following findings and assessment relating to the applicant’s material claims, having considered all of the evidence before it, including written, documentary and oral evidence before the Department and Tribunal and relevant information from independent sources.
Claim regarding illicit affair
The Tribunal has considered the applicant’s claim that she had an illicit affair with a man who was the married son of a powerful [office holder] in the ruling government in Bangladesh and finds that the claim lacks credibility for reasons provided more fully below, and the Tribunal does not accept it.
Initially before the Department the applicant refused to provide a name of the claimed boyfriend, or his father who was a claimed Government [office holder]. When pressed for this information at the hearing she provided their names as ‘[Mr B]’ and ‘[Mr C]’ respectively, and claimed the father was ‘very powerful’ in the Awami League. She was uncertain about his current status but believed that he was not a current MP. During the first hearing, the Tribunal conducted a search on the internet for information about the father, which revealed that [Mr C] is a Bangladeshi politician and [Office holder] of [Political Party 1]. He was, until January 2019, [Official position 1] and previously, [Official position 2].[1] A further search confirmed he is a current Member of Parliament.[2] The Tribunal discussed this information orally with the applicant at both the first and again at the second hearing, indicating that the information that [Mr C] belongs to the [Political Party 1] and is not a member of the Awami League contradicts her evidence and demonstrates a lack of knowledge on her part about him, which the Tribunal considers reflects adversely on the credibility of her claim. In response the applicant stated that she was not familiar with politics in Bangladesh, and all she knew was that he was a powerful politician, close to the Prime Minister, and he was [an office holder] in the ruling government until recently, as informed by her brother.
[1] [References redacted]
[2] List of 11th Parliament Members English
The Tribunal has considered the applicant’s evidence, the independent information and her responses to the information. On the basis of the independent information (cited above) it accepts that [Mr C] is a current Bangladeshi politician and MP, affiliated with, and in fact the [office holder] of, the [Political Party 1], not the Awami League. The information indicates he held [office holder] positions of [Official position 2] and [Official position 1] in the ruling government until January 2019. While the Tribunal was unable to find any publicly available information to support that has a son by the name of ‘[Mr B]’, it found one reference on an unidentifiable and therefore not particularly reliable [social media] page that refers to him having a son by the name of ‘[Mr BB]’.[3] The applicant initially named her claimed ex lover “[Mr B]” at the first hearing and changed this evidence to “[Mr BB]” at the second hearing. At the second hearing she insisted that she referred to him as “[Mr BB]” previously. Following that hearing the Tribunal went back and carefully listened to the audio recording of the earlier hearing. It finds that she clearly referred to him repeatedly through that hearing as “[Mr B]” and not “[Mr BB]”. The applicant also did not correct the Tribunal during the hearing when it referred to him repeatedly as “[Mr B]”. Given this, the Tribunal considers the applicant has changed her evidence regarding his name at the second hearing, perhaps having realised the error from the same publicly available source located by the Tribunal. The fact that she changed her evidence of the name of the alleged ex lover in this manner adds to the Tribunal’s concerns about her truthfulness and the credibility of her claims.
[3] [Reference redacted] - states that [Political Party 1] [Office holder] [Mr C] has one daughter and one son – the son is [Mr BB] who does business in Dhaka.

In addition to the above concerns, the Tribunal was also not convinced or persuaded by applicant’s oral account of the inception, development and circumstances of the alleged affair. It finds her account of her participation in an illicit affair with a prominent person involving her going out with him to public places including restaurants over a period of several months, and subsequently falsely claiming to be pregnant to convince him to marry her was not reasonably plausible or believable. It accepts that given the nature of the claim, being a personal relationship of an illicit affair, corroborating evidence may be difficult to provide, and the Tribunal is mindful that there is no requirement in law for independent corroboration for an applicant’s claims to be accepted. However, the Tribunal is also not required to accept uncritically any and all the claims made by an applicant. It is for the applicant to satisfy the Tribunal and in this case the Tribunal finds her oral testimony unconvincing and unpersuasive, and together with her inaccurate knowledge of the party affiliation of the father of the claimed boyfriend and changing evidence about his name, these concerns cumulatively lead the Tribunal to not be satisfied of the truthfulness of her claims.
For the above reasons, the Tribunal is not satisfied that the applicant had an illicit affair with the son of [Mr C]. Having rejected this claim, the Tribunal also finds there is no connection between her and [Mr D] or his past circumstances. Notwithstanding that the Tribunal was able to find a news article about the suspicious circumstances of the death of [Mr D]’s wife[4], it considers this has no relevance to her case.
[4] [Reference redacted]
The applicant claimed her brothers’ received threatening letters and their business’ were affected; her mother was spat at by goons sent to the house and she was hit by a car while travelling in a three wheeler and that these events occurred because of her unsuccessful affair with the son of [Mr C]. The Tribunal rejects all of these claims. She provided no evidence to substantiate any of them. She referred to the incident of being hit by a car when in a three wheeler causing her [Body part 1 to be in plaster for the first time before the Tribunal. She sought additional time, and numerous extensions of time, to provide further evidence, only finally to advise the Tribunal at the second hearing that she was unable to provide the threat letter because her family members are now not supporting her. This explanation contradicted her earlier evidence to the Tribunal of support given to her by her brother in law, mother and uncle. Given the credibility concerns about her claims referred to above, the Tribunal finds her evidence and explanations about the consequential claims lack substance and credibility, and cause the Tribunal to further doubt the claim regarding the affair. Having rejected the claimed affair, the Tribunal also rejects her claims about the consequential events.
For the above reasons, the Tribunal is not satisfied that the applicant had an illicit affair with the son of [Mr C] and is not satisfied she faces a real chance of serious harm if she returns to Bangladesh in the reasonably foreseeable future on this basis.
Despite rejecting the applicant’s specific claim that she had an illicit affair with the son of a powerful Bangladesh politician, and to give the applicant a (generous) benefit of its considerable doubt, the Tribunal has considered the possibility that she may have had an affair with a married man who rejected her and refused to leave his wife and child, even if it cannot be certain that this occurred. However, it is not satisfied that she will face serious harm if she returns to Bangladesh in the reasonably foreseeable future because of this. It does not accept that a married ex-lover, who rejected her to remain with his wife and child, would seek to attract further attention to the illicit relationship by threatening her personally or through any associates. The applicant provided no persuasive reasons for why he or anyone would do this, and there is no evidence or material before the Tribunal to support it. Above, the Tribunal rejected the applicant’s claims that she or any family members faced threats or pursuit of her in the past.
It has now been more than six years since the applicant left Bangladesh in November 2016 to travel to Australia to assist her sister who was pregnant with twins. She has been in Australia continuously since that time. The Tribunal is not satisfied that she faces a real chance of serious harm if she returns to Bangladesh in the reasonably foreseeable future because of a failed illicit affair with a married man in Bangladesh over 6 years ago.
Although not strictly necessary to address, the Tribunal observes that harm against her from an ex-lover or any associates or family of that individual because of the affair, would be done for a personal reason and would not come within any reason specified in s5J(1).
Assessment of future risk of gender based violence more generally
Having rejected the applicant’s claims of an illicit affair with the married son of [Mr C], and harm arising from that, but accepting for the purposes of this assessment, the possibility (even if it is not certain) that she may have had an unsuccessful illicit affair in the past with a married man and is returning to Bangladesh as a single woman, the Tribunal has considered whether she faces a real chance of serious harm on the basis of her gender as a woman, or as a single woman, or a woman who has had an affair with a married man. The Tribunal is satisfied that each of these categories are capable of coming within the definition of particular social group as defined in s. 5L.
In considering these claims, arising on the material before it, the Tribunal has taken into account independent information about violence against women in Bangladesh more generally. Sources, including the latest DFAT Country Information Report[5] and UK Country Policy and Information Note Bangladesh: Women fearing gender-based violence,[6] refer to the prevalence of gender based violence against women in Bangladesh. The Tribunal observes that much of this information relates to domestic violence, child and forced marriage, dowry disputes and acid attacks, which are not directly relevant to the applicant’s circumstances and claims. The DFAT report also refers to rape, sexual harassment and other forms of gender-based violence against women that occur frequently despite legal prohibitions. It reports that human rights NGO Odhikar documented 619 rape cases from 1 January to 30 November 2018, although these figures are likely to understate actual occurrence. The US State Department reports that prosecution of rapists is weak and inconsistent, which supports a culture of impunity and encourages further criminal acts by those who escape legal consequence for their crimes.[7] Local sources told DFAT women often do not report violent crimes, including rape, to police and that attempts to report to police may not be taken seriously.[8]
[5] DFAT Country Information Report Bangladesh 22 August 2019
[6] 'Country Policy and Information Note Bangladesh: Women fearing gender-based violence', UK Home Office, 29 June 2020, Para 2.4.9, p.9, 20200630092349
[7] USSD, ‘Country Report on Human Rights Practices for 2019’ (Section 6), 11 March 2020, Bangladesh - United States Department of State
[8] DFAT Country Information Report Bangladesh 22 August 2019 pp34-35
The DFAT report also refers to significant social stigma against single women. Most Bangladeshi women are married very young and being single by choice is virtually unheard of. NGOs report that general violence against women also occurs frequently, particularly in relation to disputes over dowries. A 2009 High Court guideline prohibits sexual harassment, known euphemistically (and inaccurately) as ‘Eve-teasing’, in both private and public areas. Activists report, however, that enforcement and monitoring of the guideline is rarely enforced, and that women commonly experienced sexual harassment. Although women’s seats on buses have been introduced in Dhaka to accommodate the relatively recent phenomenon of women commuting to work, groping is common on crowded transport. Women have also been sexually harassed and raped at their workplaces, particularly in garment factories. In many cases, fear of experiencing sexual harassment reportedly prevents women and girls from attending work or school. In conclusion, DFAT assesses that most Bangladeshi women and girls, regardless of their religious community or socio-economic status, face persistent societal discrimination and a high risk of gender-based violence and sexual harassment. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community.[9]
[9] DFAT Country Information Report Bangladesh 22 August 2019 para 3.123-3.128
The Tribunal has carefully considered the above country information in its assessment of the applicant’s risk of future harm. It has now been over 6 years since the applicant left Bangladesh following the illicit relationship. On her own evidence, few people knew about the illicit affair and it was conducted in secret. The applicant’s own evidence was that she would not be seeking to publicise it or take any steps to raise it upon return. The applicant now would be returning to Bangladesh as a single woman who has been outside the country for over six years, with her family members. She has family and a home in Bangladesh, as one of her brother’s continues to reside there in the family property. On her own evidence her family has significant property and financial resources. She has been living with her sister and her family continuously since she has been in Australia and given this history and context, the Tribunal does not accept that her family will not support her, at least by allowing her to return to the family home upon return to Bangladesh in future. Her evidence is that she started but did not complete a post secondary qualification previously, and she had an employment history there prior to coming to Australia. The Tribunal finds, given her socio economic circumstances and family support, the applicant would have resources to continue her education if she so desires and/or experience and contacts to obtain employment if necessary.
While accepting that she may experience a degree of negative social stigma in the community as an unmarried woman, and may be at risk of sexual harassment if she had to rely on public transport (although it notes there are reserved seating for females on buses in Dhaka), the Tribunal is not satisfied that these harms alone, individually or cumulatively, rise to the level of serious harm as contemplated by that term in s5J(5).
The Tribunal finds neither the applicant nor her family would publicise, or otherwise bring attention to, her past illicit affair, and the Tribunal does not therefore accept that it would be publicly known upon her return after all these years away. Given these findings, the Tribunal is not satisfied that she would face a real chance of serious gender based harm for reasons of her membership of the particular social group of women who had affairs with married men, or other illicit affairs. As the applicant is single and has not claimed fear of domestic or family violence, and taking into consideration her age and education level, the Tribunal is not satisfied she faces a real chance of forms of gender based harm from a domestic partner or close family member such as domestic violence, forced marriage, dowry disputes or acid attacks.
For these reasons the Tribunal is not satisfied that the applicant, given her particular circumstances, faces a real chance of serious harm on the basis of her gender, as a single woman, or as a woman who engaged in an illicit affair, or membership of any other particular social group.
Having regard to the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that she faces a real chance, as opposed to one that is remote or far fetched, of serious harm for reasons of her gender or any other reason mentioned in s5J(1).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether 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 she will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the findings made above regarding the applicant’s circumstances and claims indicated above, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Bangladesh.
The Tribunal, above, rejected the applicant’s claim that she was involved in an illicit relationship with the son of [Mr C], but found it was possible she may have had a failed illicit affair with a married man. For the same reasons set out above for why she does not face a real chance of serious harm, the Tribunal it is not satisfied that there are substantial grounds for believing there is a real risk she will face significant harm upon return because of this.
The Tribunal is not satisfied the applicant faces a real risk of gender based harm as a single woman or a woman who had an illicit affair in the past, for the same reasons it concluded above that she did not face a real chance of serious gender based harm. To the extent that the Tribunal acknowledged that she may face negative social stigma in the community as an unmarried woman and may be at risk of sexual harassment if she had to rely on public transport, the Tribunal is not satisfied that these kinds of harm come within the meaning of significant harm as defined in s36(2A) of the Act. It is not satisfied that it would involve severe pain or suffering, or extreme humiliation as required in the definitions of those terms.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2022] AATA 4136

7 October 2022

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