1711561 (Refugee)

[2022] AATA 2764

1711561 (Refugee) [2022] AATA 2764 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711561

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:21 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2022 at 9:06am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – Hindu – religion – active member of International Society for Krishna Consciousness (ISKCON) – active involvement with the Hindu community – political opinion – active supporter and member of Bangladesh Nationalist Party (BNP) – false criminal charges remained outstanding at the time of the applicant’s departure for Australia – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 14 October 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 17 March 2017. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 10 June 2022 at 11am AEST.

4. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. This was on the basis of the Tribunal Member being based in Sydney and the applicant being in Perth. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The Tribunal was assisted through the use of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by video using Microsoft Teams.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 22 August 2019, a copy of which was provided to the applicant in advance of the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

13. The applicant applied for an FA 600 tourist visa on 11 November 2016, which was granted on 28 November 2016. The applicant entered Australia on [date] January 2017. The applicant applied for the protection visa on 17 March 2017. The applicant never visited any other country.

14. The following information is apparent from the application for protection forms. The applicant was born on [date] in Kishoreganj, Bangladesh, where he lived until 1982. The applicant is a Hindu of Bengali ethnicity who speaks, reads and writes Bengali. The applicant married [a named person] on [date] May 2012. Together they have one child, [who] was born on [date]. The applicant’s wife, child, mother, father and sister reside in Bangladesh, and the applicant’s brother resides in Australia. The applicant is in contact with his wife by phone and mobile applications.  The applicant lived at three addresses in Dakha[Village 1] from 1982 until 1987. From April 2015 until June 2015 the applicant lived in Sylhet.  From June 2015 until January 2017, the applicant lived in Dhaka[Village 1].  The applicant attended middle school from [year], graduating from [a] High School in [year].  The applicant worked at a family business, [a shop], located in Dhaka, Bangladesh from January 1988 until now.

15. After arrival in Australia, the applicant lived with his brother in Western Australia from January 2017 until February 2017. The applicant currently lives in [NSW] where he has been living since February 2017 until the time of application.

16. The applicant provided a written statement to the Department setting out his claims for protection, as follows (not corrected for spelling or grammar):

    1.     I was born in Kishoreganj, Bangladesh on [date]. My family moved to Dhaka [in] 1982. We then moved to [Village 1][address deleted] Dhaka in 1987. In January 2009, we moved to [Village 1][another address], Dhaka. In April 2015, I went to Sylhet and stayed there till June 2015 and returned to [an] address_. In June 2015, I went to [a town], Habiganj and stayed there for 2 months

    2.     I have a brother and sister. My brother lives in Australia. My family currently lives in [Village 1].

    3.     I am married on [date] May 2012 and have child.

    4.     I am Hindu. Our family worship Goddess Kali and Shiva [Raghunath] and Krishna. Prior to moving to [Village 1], Dhaka, my family used to live in a Hindu [temple]. The name _of the temple is [name deleted].

    5.     My family became attracted to ISKCON and became followers of ISKCON. Due to my family's active affiliation and involvement with ISKCON, I also became an active ISKCON activist and engaged in activities promoting the ISKCON principles through public chanting and encourage people to read Holly Gita and follow the path of Krishna. I also used to go door-to-door asking for donation. I am the third generation in my family in promoting and involve with ISKCON. We believe Krishna is the incarnation of Lord Vishnu comes to earth whenever there is a need. We follow the teachings of our Guru Abhay Charanaravinda Bhaktivedanta Swami Prabhupada and believe in Holy Maha Mantra 'Hare Krishna Hare Krishna Krishna Krishna Hare Hare, Hare Rama Hare Rama, Rama Rama Hare Hare'. We believe that by chanting the Maha mantra, devotees would be enlightened and the environment would be purified by chanting of Maha Mantra in public.

    6.     My family has a business in Bangladesh and I involved with that [business]. I used to donate money for the activities of the ISKCON and other Hindu religious and social activities. At Kishoreganj, we use to go to the rural areas to preach and chant Hare Krishna. Since my family is from Kishorganj and actively involved with ISKCON temple, gradually I also got involved with that. We have very close connection with the ISKCON Mandir in Kishorgonj. Initially, late Montu Goswami was the head of the Mandir and we consider him as Guru and followed him.

    7.     We also organise pooja and Kirtan at ISKCON devotees' houses and invite others to join in the Kirtan and enlighten their knowledge and encourage them to follow the path of Krishna noted by our Guru. It is a big process and it generally runs for 3, 5 or 7 days depends on the program schedule. It is a popular way of preaching and promoting our movement. It is kind of a musical drama. I along with other devotees used to finance/donate poor Hindu student to pay their education fees from this organisation. Under the ISKCON banner, I used to organize all the religious related cultural activities with the help from [ISKCON].

    8.     In addition, I became the member of [Group 1], which is in Kishoreganj and [Committee 1] and [Committee 2]. [Committee 2] is the mother [committee].

    9.     At [committees] we organise Durga poojas in the city area. As a member of the pooja committee, I actively involved in collecting donation, organising procession and involved in festival decoration and inviting Hindu scholars for teaching. However, due to the continued. attack on Hindus and our temples, Hindus have restricted their practice in order to protect them from further attack. In my view, by forcing us to restrict our prayers and right to practice our religion is a serious attack on our religious freedom. I also view that through continuing threats and intimidation targeting Hindus, the extremist Muslim fundamentalists with the support from the authorities force people to change their religion. In my view I can not change my religion because it is my religion and I believe in my religious and its principles.

    10.  [Committee 2]is the combination of [many] other Mandir Pooja committees of the same or nearby locality. It generally communicate with the authorities including the government officials in relation to the issues Hindus face in Bangladesh. I am one of the field agent for both committees ([Committee 1] and [Committee 2]. In [Committee 2], one of my responsibilities is to monitor the incidents against the Hindus and report to the Pooja Community and encourage them to take appropriate steps. I also through the committee contact with the officials regarding the issues Hindus face in their day to day life. Since I am a field agent, people including Hindus and Muslim know me very well and my activities. As a result of that hard-line Muslims perceive me as their enemy.

    11.  I also ran a Hindu youth group in [an area] (which is close to [Village 1]), whose families live in that same temple where my family used to live. All of the kids are really vulnerable due to lack of education facilities and other basic needs. So politicians find them really easy to exploit them for their needs.   I used to help and do my service to protect those vulnerable children from being exploited including force conversion. I am against force conversion. However, in Bangladesh Muslim hardliners with the help from the Madarassa used to engage in forced conversion. Due to my active involvement with the Hindu community including the young children, they couId not do it effectively. As a result of that, the Muslim extremist consider me as their enemy.

    12.  In addition, I am an active supporter and member of BNP (I was given party identity to carry out party activities) and directly involved and worked under our ward BNP committee. It has been nearly 17 years that I involved with BNP. Due to that people in the area knows my political background. I have been offered a position because of my contribution but due to my family's advice I could not accept it. The reason was the Awami League activist used to call and threats me and my family got scared and advise me not to join for the time being. I belong to [Ward 1] but I used to be involved in political activites for BNP not only for my ward but other areas as well. The Awami League activists targeted me in few occasions. My BNP political leaders also aware of the threats and since I am from a minority community, they advised me that I would face more harm from the Awami League if I became an office bearer in the committee.

    13.  During 2001 election I was just an ordinary activist of BNP and used to assist the BNP activists in putting posters and writing banners and attending the meetings. During 2008 election I was very active in helping the local BNP leaders in promoting the election policies of the BNP. I supported [a named individual] in his election campaigning. I involved in putting posters, help the BNP leaders to organise the meeting and rallies, and involved in door-to-door election campaign, collecting donations. I was directly in touch and involved with [high profile leaders].

    14.  After the mayor election ([Ward 1]) on April, 2015 [[Mr A]'s wife contested on behalf of the BNP] I was physically harassed and I had to fear for my life. All my area leaders were went for hiding. On the advice of my leaders, I also moved from [Village 1] and went to my in laws house which is in [a town], Habiganj. I had to hide there for 2 months and came back to Dhaka when everything became normal again.

    15.  There is a general perception outside of Bangladesh that BNP is against religious minorities. But in reality it is not. Our late President Zia Ur Rahman promoted Bangladesh Nationalism which recognise all the religions while giving prominence place to Islam. I do not find it is against religious minorities. On the other hand, BNP is a political party which promotes inclusiveness and protect Bengalis. On the other hand, Awami League though created a perception that it protects religious minorities but in reality in consists of religious hardliners who promote hatred towards religious minorities. There are many incidents in Bangladesh which confirm that Awami League was behind the attacks against Hindus.

    16.  Further, in my view, BNP is the only party which could unite the people irrespective of religions and regions. Further, Awami League is considered as the most corrupted political party which engage in inhuman activities.

    17.  Due to my religious activities, beliefs, promoting and preaching ISKCON principles and my political opinion I faced intimidation, harm and threats from Islamic extremists and Awami League people.

    18.  One of the local Awami League leaders [Mr B] who is well known for his criminal activities and connections with the criminal gang used to harass me for stop my political activities. [Mr B] has already forcibly grab one of our [shops]. He is a notorious criminal gang leader and a Local Awami league leader who has the support of the national level Awami league leaders. As a result of that, the police or authorities could not do anything against him.

    19.  We sought help from the police but instead of helping us, they harasses us. [Mr B] was behind this. [Mr B] is also from [an area] where I ran the youth group. He also has business at [City 1] where my father also has business. So it is easy for him to control the [City 1] area police station with his political identity.

    20.  He threatened us to give our properties to him. He influenced one of my relatives [to] lodge a false case against me and my father to harass us. [He] is Awami League supporter. On 22 March 2016 he lodged a complaint against me. As a result of that, police used to come to my place and harassed and intimidate me. They took me to the local police station 4 to 5 times and as a result of that I suffered mental depression and faced degrading treatment.

    21.  Since there were no evidence for them to arrest me, they tried to influence the neighbours in our building. Fortunately none of them was willing to testify against me because they knew that the police complaint was a false one.

    22.  In one point the Officer in charge of the police threatened me and exerted pressure on me to sign the paper saying that with my father's consent I willingly give them the shop. I refused to do it. As a result of that, they harassed me and my family and then demanded money from us. In order to save my family, we gave money to the Awami League people and the police to avoid any harm. People in the vicinity of the area knew it very well but they could not help us. Almost everyone in my area knows about it. But no one could do any help to us.

    23.  It should be noted that I was one of the witnesses on  [an attack] in Kishoreganj in June 2016. I was there to participate in [a] meeting. The police did not take any steps to apprehend the attackers as they did not want to have any problems with the Islamic extremists. On the other hand, the police due to the influence of the attackers intimidated and harassed us not to lodge any police complaint and to make it as an issue due to threats, I stopped going to Kishoreganj from that time.

    24.  I was at the ISKCON temple when the extremists attacked the ISKCON temple Sylhet in September 2016. I used to get threats from Islamic extremists because of my religious identity and activity. In addition, I received threats and faced significant harassment from the Awami League cadres and their criminal network to stop my political support to the BNP. Due to my support to the BNP, the local Awami League cadres are angry on me because they perceive that due to my activities and association with the BNP, the Hindus would not support the Awami League and would support the BNP.

    25.  Due to the continuous harassment from the Awami League and in the aftermath of the September 2016 incident against ISKCON temple, I decide to leave the country and asked my brother in Australia to help me. There are many reports which indicate that the Islamic extremists including ISIS have established their presence in Bangladesh and would target active members of religious minorities.

    26.  On [date] October 2016, when I was returning from [Village 1] ISKCON temple, I was stopped and physically harassed and beaten by an unknown group and they warned me to stop my religious work. When people in the surrounding area started coming towards the incident after hearing my voice, the attackers then left me and ran from the place. People in that area took me to local medical clinic because I suffered back injury. We could not see any hope and realize that my life is in danger and may be one day they will kill me too.

    27.  I asked my brother to speed up the process and he applied for me under family sponsor visitor visa around beginning of the month November and the Australian immigration then granted me a visa to come to Australia in end November 2016. However, I feared to come alone through the Bangladesh airport because of my pending case. In addition, I faced significant mental health issues due to the fear. My brother who is in Australia then decided to come to Bangladesh to take me. He stayed at his in laws house.

    28.  On the day of departure, when I was getting ready, my family advised me about the presence of the Police vehicle. My family advised me it could be for me because the police and the Awami League might have known about my departure. Due to that my parents asked me to leave the house in a casual dress. I left the house and waited somewhere else on the path to the airport. Later my brother left house with all luggage by a car. On his way to the airport, though police checked it but they did not see me and asked my brother some questions and since he showed Australian passport, they did not ask anything and let him go.

    29.  For those reasons, I could not leave Bangladesh Immediately. After coming to Australia, I could not do anything and it took some time for me to come out from the stress and depression I suffered in Bangladesh. My brother then started look for an agent to seek immigration assistance. He found it hard to find a good Migration agent who has the facility to communicate in Bengali. In the mean time, my uncle who got his permanent residency through late Mr David Bitel refer my brother to speak to Parish Patience Immigration Lawyers to speak to him. At that time, he learned that Mr David Bitel was ·no more and the Staff at Parish Patience Immigration Lawyers told to make an appointment to have consultation with Mahalingam Sutharshan (Shan). However at that time he was on overseas leave and they booked an appointment to have a phone consultation on 17 February 2017. After I had the phone consultation (they offered me a Bengali interpreter as well), I discussed with my claim and Shan advised me that if I am an active ISKCON member and involve in promoting and preaching the principles of ISKCON in public and I am an active supporter of the BNP, I could seek protection in Australia. He then said he would send me an email and cost agreement to me. He later sent me an email provided me his advice. I then instructed them to lodge a protection visa.

    30.  They sent me form 866 and asked me to fill and send to them. Since I am in Perth, I filled and send the form to them. That's is the reason, there is a delay in applying for a protection visa.

    31.  I fear if I returned to Bangladesh I would face serious and significant harm including torture, degrading, inhuman ·and cruel treatment for the following reasons:

    a.I am a Hindu. Hindus face significant harm and severe discrimination in Bangladesh.

    b.I am not an ordinary Hindu, rather, I am an active Hindu promoting the principles of ISKCON and member.of ISKCON. I engaged in promoting the religion through public chanting.

    c.I engage in activities including promoting and preaching ISKCON principles.

    d.I engage in encouraging people in follow the path of Lord Krishna and follow the principles of ISKCON.

    e.I am an active member of Hindu organizations which involve in promoting and protecting the rights of Hindus.

    f.I engage in social service to protect vulnerable Hindus including Hindu children.

    g.I involve in activities which the Islamic extremist perceive that it hinders their activities such as encouraging the vulnerable Hindu children follow the path of ISKCON and stop them from converted to Islam.

    h.I am an active supporter of the BNP.

    32.  I fear due to my particular circumstance as a Hindu, I would not be able to get effective protection from the authorities because the Islamic extremist have connections and links with the authorities. Further I am a supporter of the BNP, it will be a simple ground for the authorities to not to protect me. I fear there is no place in Bangladesh is safe for me because my fear of harm in nationwide because the Islamic extremists have network throughout Bangladesh and continue to target Hindus who actively involve in promoting and preaching their religion.

    33.  Accordingly, I seek protection in Australia.

1. The applicant provided the following documents to the Department:

   ·Various photos with a handwritten description which read ‘my religious activities’.

   ·A complaint letter written by [the] applicant’s paternal uncle, to [Village 1] Police Station, and its English translation, dated 21 March 2016. The letter describes a burglary incident on [date] February 2016 that resulted in various jewellery items being taken.

   ·Statement from [a] Clinic dated 9 October 2016 indicating an admission for the applicant from 5– 9 October 2016 with a diagnosis of x-ray of spine (back pain).

   ·A letter from [Committee 1], General Secretary, dated 26 December 2016, which states that the applicant is an active member of the committee, and that he was vocal and protested personally about an attack on Sylhet ISCKON on [date] September, which resulted in him getting calls in which threats to his life were made.

   ·A letter from [Committee 2], General Secretary, dated 10 January 2017, stating that the applicant is honest, dedicated, sincere and actively involved. The letter also states that the applicant has faced a life-threatening situation because of his involvement in many movements in response to violence against Hindus, and that the local government could not guarantee his protection.

   ·A letter from [Group 1], General Secretary, dated 13 January 2017, which states that the applicant is an active member of its committee, and that the applicant had received ‘bad calls’ because of his involvement in committee activities.

   ·A letter from International Society for Krishna Consciousness, General Secretary, Bangladesh, dated 26 January 2017, stating that the applicant is an active member of the International Society for Krishna Consciousness (ISKCON). The letter notes that the applicant is going to leave the country because of ‘serious unavoidable circumstances’.

   ·A letter from [a] Ward Councillor, dated 22 February 2017, which states that the applicant has been a supporter of BNP since 2000 despite his Hindu religion. The letter also states that the author is aware that the applicant has to leave Bangladesh due to threatening incidents and is aware of the confiscation of the applicant’s family shop. It states that the local government could not help.

   Independent information

2. The 2019 DFAT report on Bangladesh provides the following information (underlining added):

   Hindus

   [3.43]    Most Hindus are ethnically and linguistically Bengali, and are not physically distinguishable from the majority Muslim population. Hindus live throughout Bangladesh, including in Dhaka. There are, however, a small number of ‘Hindu belts’ in the south, east and north of the country where Hindus comprise up to 40 per cent of the local population. Some exclusively Hindu villages exist, although most villages are religiously mixed.

   [3.44]    The percentage of Hindus in Bangladesh has fallen considerably over time. There have been two mass emigrations of Hindus from Bangladesh (and East Bengal). At the time of Partition, approximately 2.5 million Hindus left then-East Pakistan for India – the 1951 Census indicated a fall in the Hindu population of 21.4 per cent from the previous Census ten years earlier. The second occurred during the 1971 civil war, when up to 8 million Hindus (70 per cent of the Hindu population of East Pakistan) fled the country and as many as 2.4 million died, including from being deliberately targeted by the Pakistan Army and its local allies. The overwhelming majority of Hindus who have left Bangladesh have gone to India, although small numbers have also gone to western countries.

   [3.45]    No legal or other restrictions prevent Hindus from freely practising their faith, or from participating in broader society. Hindus have made a significant contribution to Bangladeshi public life, including in politics, government, academia, business, and the arts. While they have traditionally supported the AL and other left-leaning parties such as the Communist Party, all major political parties have fielded Hindu candidates. While the current AL Cabinet has Hindu members, the overall level of Hindu political representation remains low and Hindu community groups have campaigned for reserved seats in parliament. Similar to other religious minorities, Hindus are not well represented in the security forces, but local sources told DFAT that that situation is now changing and more Hindus are being recruited.

   [3.46]    Like other minorities, the Hindu community is disproportionately affected by historical and continuing land appropriation (‘land grabbing’). During the 1965 war between Pakistan and India, the then- Pakistani government designated Hindus as ‘enemies’ and many had their property seized under the Enemy Property Act (1965). The Vested Properties Return (Amendment) Act (2011) allowed Hindus to apply for the return of, or compensation for, property seized under the 1965 Act. However, Hindu communities and advocacy organisations have complained that the Act is too narrowly defined, and the application process cumbersome and convoluted. In June 2016, an NGO representing organisations with claims for property returns alleged that government officials tasked with reviewing claims were denying them even when required documentation was in order, or were classifying properties as state-owned and therefore not eligible for return. The NGO reported that 70 per cent of all claims remained unresolved four years after the enactment of the 2011 Act.

   [3.47]    In the lead-up to and following the 2014 elections, activists from the Islamist Jamaat-e-Islami party (see Jamaat-e-Islami (JI)) launched a wave of attacks against the Hindu community, killing more than two dozen, destroying hundreds of homes and businesses, and displacing thousands. DFAT understands that the primary motivation for the anti-Hindu violence, which was most prevalent in the northwest, was resentment over the testimony of Hindu witnesses in International Crimes Tribunal (ICT) proceedings (see International Crimes Tribunal (ICT)). In the aftermath of the violence, the High Court ruled that law enforcement agencies had ‘seriously failed’ to protect members of vulnerable groups, including Hindus. The government responded by providing assistance to victims and helping communities restore religious and private property damaged in the violence. The 2018 election was not characterised by such violence.

   [3.48]    The small-scale localised attacks carried out by Islamist militant groups against minority religious and social groups across the country in 2013-16 killed or seriously injured several Hindus. Police were despatched to protect temples and clergy in response to the attacks and to death threats made by militants. DFAT is not aware of any subsequent attacks of a similar nature.

   [3.49]    There have been occasional cases of mob violence against Hindu targets. In October 2016, a mob of at least 100 violently attacked a Hindu village in Brahmanbaria district in east-central Bangladesh. Although police reinforcements and paramilitary border guards were despatched to the area, the attack left dozens injured, and at least 15 Hindu temples and over 200 Hindu homes badly damaged and looted. Initial media reports suggested Islamists had incited the violence by alleging a Hindu had posted on Facebook an edited photograph of a Hindu deity seated atop the Kaaba in Mecca. A subsequent government investigation found the Facebook photograph had been planted, most likely as a means to incite the violence. A NCHR investigation concluded that the incident was a pre-planned effort aimed at appropriating Hindu land. Authorities arrested and/or charged more than 1000 people connected to the incident, including a local police officer, while the AL suspended three local leaders from the party for their involvement. In a separate incident in November 2017, a mob of approximately 20,000 in Rangpur district in northern Bangladesh set fire to and vandalised approximately 30 private homes belonging to Hindus. The violence followed a Facebook posting judged to demean the Prophet Muhammad. A press report stated one person was killed during the incident, and five suffered critical injuries. Police arrested more than 50 in the wake of the attack, and the government pledged to compensate those affected.

   [3.50]    DFAT assesses that Hindus with historical land claims face a moderate risk of official discrimination because they are unlikely to be able to reclaim their property or obtain compensation despite a legal pathway enabling them to do so. DFAT assesses that Hindus face a low risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions such as national elections. Hindus also face a risk of physical violence in the form of mob attacks triggered by localised factors, although these are relatively uncommon; and from sporadic attacks by Islamist militants.[1]

   [1] DFAT, Country Information Report – Bangladesh, 22 August 2019, pp. 21-23, paras [3.43] – [3.50].

3. The same DFAT Report also provides the following information:

   POLITICAL OPINION (ACTUAL OR IMPUTED)

   [3.61]    Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.

   [3.62]    The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.[2]

   …

   [2] Ibid pp. 24-25, paras [3.61] – [3.62].

   Bangladesh Nationalist Party (BNP)

   …

   [3.80]    BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.

   [3.81]    Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.

   [3.82]    DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.[3]

   [3] Ibid p. 27, paras [3.80] – [3.82].

4. The Tribunal notes the following recent relevant information contained in the report by the Country of Origin Information Services Section of the Department of Home Affairs, Common Claims – Bangladesh effective from 5 May 2022 (footnotes omitted):

   Main opposition party members

   The AL uses security forces to target high profile opponents and political activists. The AL continues to focus on restricting the activities of and gathering information through torture of members of opposition political parties,  using security forces to target its opponents.  Social organisations that are close to the government are allowed to operate freely whereas those organisations which are associated with the opposition parties are prevented from implementing programs that are critical of the government.  Police, including ‘elite’ units such as RAB, actively target political dissenters and government rivals; enforced disappearances , torture and extra-judicial killings have become more common.  It is estimated that 610 persons have disappeared since the AL came to office in 2009.  While government officials have repeatedly denied the cases of enforced disappearance, there were allegations of state security forces being involved in each of the incidents of disappearance and in some cases evidence has been found. 

   The US government imposed sanctions on the RAB. The August 2021, Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances. Aaccording to human rights organisations in the countrythe, Rapid Action Battalion (RAB) is responsible for more enforced disappearances in Bangladesh than any other unit.  Human Rights Watch creates a webpage tracking and profiling the cases of 86 victims in Bangladesh who were forcibly disappeared and who remain missing.  On 10 December 2021, the US Treasury Department imposed sanctions under the Global Magnitsky Human Rights Accountability Act on the RAB and several of its current and former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances.  Since the sanctions, the RAB and National Security Intelligence (NSI) have been reportedly making threatening phone calls to victims and human rights defenders and their families, summoning them to their local offices, and visiting their workplaces and homes in the middle of the night. 

   Mass arrests of opposition members are also used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters – both BNP and JI – are not uncommon, and appear to be used as tools of intimidation against political opposition groups.  Arrests often occur in the context of demonstrations.  In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations.  Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections.  More than 4,500 BNP members were arrested on ‘trumped-up charges’.  Mass arrests have also been used to suppress demonstrations by workers in the garment manufacturing industry.  In its April to June 2021 report, Odhikar states that police arrested and detained 1230 opposition leaders and activists, including members of Hefazat-e-Islam, and another 53 leaders and activists of the Bangladesh Students, Youth and Labor Rights Council were also arrested and taken into remand through court, for holding rallies against Indian PM Modi’s arrival in Bangladesh. 

   The AL uses the courts and legal processes to suppress opponents. Fictitious charges are often laid against AL opponents.  Trumped-up charges relating to corruption, publishing ‘false information’, pornography, instigating violence and vandalism are frequently used against political opponents.  The Anti-Corruption Commission established in 2004 has targeted opposition parties, bureaucrats and officials and avoided investigating and persecuting ruling-party politicians accused of corruption.  The ACC filed 262 cases in 2019, with submission of 267 charge sheets to various courts, but the conviction rate on cases stood at 63%, and these cases did not involve high-profile politicians or public officials.  Between 2014 and until mid-2018, the Hasina government filed an estimated 78,000 cases against the entire rank and file of the BNP, which party leaders claim left some 1.8 million BNP workers and office-bearers charged, arrested or forced into exile.  The Economist places the number of targeted BNP workers even higher, stating that lawsuits entangled some 2.5 million party workers in endless litigation.  Opposition leader Khaleda Zia was convicted on corruption charges in February 2018 and imprisoned.  Zia has been accused in a total of 37 cases, convicted in two (Zia Orphanage and Zia Charitable) cases, and is on bail in the remaining 35 cases.  In March 2020, Khaleda Zia was granted a suspended jail sentence on the condition that she cannot travel abroad, as she still has more than two dozen other charges filed against her in recent years by the government.  This was again extended in March 2022.  Zia’s self-exiled son, Tarique Rahman, was given a life sentence in absentia in October 2018, for involvement in a 2004 assassination attempt on Sheikh Hasina.  On 3 July 2020, the court sentenced nine men to death and 25 men to life imprisonment, who were all BNP members, for a 1994 attack on a train carrying Prime Minister Sheikh Hasina, who was at the time the leader of the opposition party.

   Ordinary members of the BNP face a low risk of politically motivated violence but moderate levels of harassment from AL students. AL-BNP inter-party violence has declined since 2014,  during which authorities reportedly responded to BNP street violence with torture, illegal detentions and extra-judicial killings of leaders and activists.  During 2019, 4 incidents of AL-BNP clashes were reported that left 57 persons injured (compared to 26 clashes reported in 2017 that left 314 persons injured and one dead).   The potential for inter-party violent incidents involving the BNP has declined after it was completely routed at the 2018 national elections.  There have been numerous reports of attacks by law enforcement agencies, the AL-back Chhatra League and Jubo League leaders-activists on the BNP, and others, in 2019 , 2020  and 2021.

5. The Tribunal has also sourced a report dated 1 May 2017 of the Country of Origin Information Services Section of the Department of Home Affairs[4] answering the question as to whether members of ISKCON face persecution from the Awami League in Bangladesh. The following response, although several years old, is nevertheless informative and provides as follows:

   [4] 'BGD CI170419120213461 - ISKCON in Bangladesh', Country of Origin Information Services Section (COISS), 01 May 2017, CR8DFDCEA136.

   Do members of ISKCON face persecution from the Awami League government and its agencies in Bangladesh?

   No information was found indicating that members of ISKCON (the International Society of Krishna Consciousness or Hare Krishnas) face harm from the Awami League government and its agencies in Bangladesh. However, in common with other religious minorities in the country, ISKCON members have been the victims of a small number of targeted attacks on their places of worship that have been attributed to Islamist groups active in Bangladesh. Religious minorities more broadly suffer discrimination in some areas of Bangladeshi society, such as land ownership, education and employment. 

   Attacks on ISKCON members and places of worship

   In September 2016, a Muslim mob attacked an ISKCON temple in Sylhet with sticks as they were angry that it was playing devotional songs at a time that coincided with Friday prayers. Local newspaper the Dhaka Tribune said that the attackers also threw bricks at the temple, damaging its entrance and an adjacent dental clinic.[5]

   [5] Case filed over Sylhet Iskcon temple attack, Dhaka Tribune, 5 September 2016, CX6A26A6E16518.

   On 10 December 2015 two people were injured when gunmen attacked an ISKCON temple in Dinajpur District. The attackers first threw a bomb at a religious gathering inside the temple, which did not explode, before opening fire.[6] A suspect was apprehended by locals and handed over to the police, while further suspects were detained in following days.[7] Shariful Islam and Abdur Rahman, members of banned Islamic terrorist organisation Jamaat-ul-Mujahideen Bangladesh (JMB), later confessed to the attack.[8]

   [6] 2 hurt in Dinajpur temple gun attack, The Daily Star, 11 December 2015, CXBD6A0DE17978.

   [7] Bangladesh Timeline Year 2015, South Asia Terrorism Portal, 31 December 2015, CISEC96CF14324, p.42 and 5 more detained over Dinajpur temple blast, The Daily Star, 12 December 2015, CXBD6A0DE17979.

   [8] Incidents and Statements Involving JMB: 2016, South Asia Terrorism Portal, 28 February 2016, CIS38A8012456 and Incidents and Statements Involving JMB: 2015, South Asia Terrorism Portal, 29 December 2015, CISEC96CF14480.

   In a separate incident, ISKCON priest Birendranath Roy survived a gun attack in Dinajpur District on 30 November 2015.[9]

   [9] 2 hurt in Dinajpur temple gun attack, The Daily Star, 11 December 2015, CXBD6A0DE17978.

   In January 2014, according to the Daily Star, about 1200 Hindus sought shelter in an ISKCON temple in Gobalpur village after activists from the main opposition Bangladesh Nationalist Party (BNP) and the Islamist Jamaat-e-Islami (JI) party targeted Hindu households in western Jessore and north-western Dinajpur in election-related violence.[10]

   [10] Hundreds of Hindus attacked in post-poll violence in Bangladesh take shelter in temples, India Today, 7 January 2014, CX1B9ECAB9991.

   A July 2014 post on the website of the Forum for Hindu Awakening[11] refers to an attack on an ISKCON temple in Dhaka in which a Muslim crowd threw bricks at the temple gate. It said that more than eight ISKCON members were injured.[12]

   [11] Source description: ‘The Forum for Hindu Awakening (FHA) is a charitable organization devoted to awaken society to the unique spiritual science behind Hindu Dharma concepts and practices, to motivate people to live and preserve them and to facilitate the spiritual progress of humanity.’

   [12] ISKCON Chariot Festival Attack in Bangladesh sparks protest by Hindus at National Press Club, Dhaka, Forum for Hindu Awakening, 5 July 2014, CISEFCB23F7378.

   Violence against religious minorities in Bangladesh

   The Bangladesh Constitution proclaims Islam as the State religion but enshrines the principle of secularism and provides for equality of all religions.[13] However, in practice, ISKCON members are one of a number of religious minorities that have been the target of attacks in recent years – many of which have been attributed to Bangladesh-based Islamists or those with purported links to international terrorist groups such as Islamic State (also known as ISIS or ISIL).

   [13] 2015 Report on International Religious Freedom – Bangladesh, US Department of State, 10 August 2016, OGD95BE926656, p.1.

   The 2016 Department of Foreign Affairs and Trade (DFAT) report on Bangladesh said that, since 2014, there has been an ‘escalation in longstanding tensions between religious and secular Bangladeshi identities, recurring periods of unease between Islamists and secular and other minority Bangladeshi communities, and an increasingly gridlocked set of national political institutions’.[14] The report said:

   [14] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.5.

   This has resulted in significant levels of political violence and has expanded opportunities for violent extremists and criminal groups.[15]

   [15] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.5.

   The Human Rights Watch 2017 World Report said that Bangladesh ‘witnessed a spate of violent attacks against secular bloggers, academics, gay rights activists, foreigners, and members of religious minorities in 2016’.[16] The report said:

   [16] Human Rights Watch World Report 2017, Human Rights Watch, 13 January 2017, NG2A465F52, p.113.

   Several religious leaders were killed or injured in targeted attacks, allegedly by the same extremist Muslim groups that targeted secular writers. In April, the advocacy group Hindu-Buddha-Christian Oikya Parishad said there had been three times more incidents of violence against minority communities in the first three months of 2016 that in all of 2015.[17]

   [17] Human Rights Watch World Report 2017, Human Rights Watch, 13 January 2017, NG2A465F52, p.115.

   The 2016-2017 Amnesty International annual report said that armed groups killed at least 32 people in targeted attacks in 2016, including secular activists, LGBTI people and religious minorities.[18]

   [18] Amnesty International Report 2016-2017, Amnesty International, 23 February 2017, NG2A465F54, p.81.

   Hindus

   Hindus are Bangladesh’s largest religious minority, comprising an estimated 15 million people.[19] According to Freedom House, during the 2014 elections a number of attacks ‘specifically targeted members of the country’s Hindu and Christian minority groups, affecting around 700 people’.[20] The DFAT report said that ‘Islamic militants have periodically attacked members of the Hindu community and Hindu religious sites’.[21] The report said:

   The frequency and severity of these attacks, generally involving machete attacks, has increased considerably in recent times. Militants conducted IED attacks at Hindu temples in Dinajpur on 5 and 10 December 2015, injuring over 10 people. ISIL claimed responsibility for the beheading of a Hindu businessman in Gobindganj, Gaibandha District, on 8 February 2016; an attack at a Hindu temple in Deviganj, Panchgarh District, on 21 February 2016, in which militants beheaded a priest and injured two worshippers; the killing of a Hindu tailor in Tangail, Tangail district, on 30 April 2016 (ISIL reportedly claimed the tailor had ‘blasphemed the Prophet Mohamed’); the killing of a Hindu shopkeeper in Gobindoganj on 25 May 2016, the killing of a Hindu priest in Jhenaidah, southwest Bangladesh, on 7 June 2016; and the killing of a Hindu monastery worker in Pabna, western Bangladesh, on 10 June 2016.[22]

   In terms of attacks on ISKCON members and places of worship in Bangladesh, it is relevant to note that the International Society for Krishna Consciousness derives from the Gaudiya-Vaishnava sampradāya, a monotheistic tradition within the Vedic or Hindu culture,[23] and as a result, ISKCON members may be perceived as Hindus by other individuals or groups, including Islamists in Bangladesh.

   It may also be relevant to note – in terms of the applicant’s claims – that Hindus have tended to be aligned with the Awami League politically in Bangladesh. A 2015 report by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) said:

   Although known to have close connections with the ruling party, AL (Awami League), owing to longstanding ties between Prime Minister Sheikh Hasina’s family and the Gandhis, they have continued to leave the country (for India in particular) since the AL came to power[229].[24]

   A 2015 article from peer-reviewed journal The Journal of Legislative Studies further indicated the perceived alignment between Hindus and the AL, stating that ‘The AL believes that the Hindus are already their secure vote bank, while the BNP believes that the Hindus will not vote for them’.[25]

   [19] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.11.

   [20] Freedom in the World 2016 – Bangladesh, Freedom House, 24 May 2016, NGE43874C302, p.2.

   [21] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.11.

   [22] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, pp.11-12.

   [23] What is ISKCON?, International Society for Krishna Consciousness, 2014, CISEFCB23F7381.

   [24] Report on the mission to the People's Republic of Bangladesh from 2 to 14 April 2015, French Office for the Protection of Refugees and Stateless Persons (OFPRA), 7 April 2016, CIS38A8012611, p.32.

   [25] The Parliament of Bangladesh: Representation and Accountability, The Journal of Legislative Studies, 1 January 2015, vol.21, no.2, CISEC96CF1286, p.265.

1. Provided on behalf of the applicant to the Department was a submission dated 17 March 2017. The submission indicates that the applicant is seeking protection on the basis of his religion, both as a Hindu promoting the values and principles of Hinduism and as a member of ISKON promoting and preaching the principles of the organisation. The applicant is also owed protection on the basis of his political opinion in support of the BNP. It is submitted that there is no meaningful option for the applicant to relocate within Bangladesh or to seek the protection of authorities. It is submitted that the applicant also meets complementary protection criteria.

2. A significant number of media reports and other independent information are cited and extracted in the submission. This includes information in relation to recent attacks against Hindus in Bangladesh by the ruling Awami League, recent attacks against Hindus in Dinajpur, recent attacks against Hindus in Bangladesh, recent statements and reports on the growth of Islamic fundamentalism in Bangladesh, reports and statements on land grabbing issues targeting Hindus in Bangladesh, incidents of persecution against opposition party members in Bangladesh, particularly targeting BNP members and activists, and further country information on continuing human rights violations against BNP members and activists including local level members. Tribunal decisions are referred to.

3. The Tribunal has taken into account these various media reports and independent information.

   Hearing, credibility, findings, and assessment

4. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

5. In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

6. The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.

7. In the hearing the Tribunal asked the applicant detailed questions about his claimed political involvement in the BNP and difficulties encountered as a result. There was a broad consistency between the applicant’s written claims and evidence provided in the hearing. There was also consistency in relation to key matters as to additional difficulties encountered previously given in the interview with the delegate. The applicant provided his evidence in the hearing in a way that included nuance and detail, and this persuaded the Tribunal that the applicant was recounting events that actually occurred.

8. The Tribunal is satisfied that the applicant was involved in and a member of the BNP from 2000. The Tribunal is satisfied that the applicant was significantly involved in election activity in 2001. The Tribunal is satisfied of various incidents in the ensuring years where the applicant was threatened or faced actual physical harm as a result of political activity. The Tribunal is satisfied that on one occasion the applicant was cut on his hand by members of the Awami League.  The Tribunal is satisfied that the applicant participated in political protests on a regular basis and in one protest was chased by police, and that he was injured when he encountered an obstacle during the chase. The Tribunal is satisfied that there was an incident during the mayoral election in April 2015 when the applicant was chased by a group of political opponents. The Tribunal is satisfied that the threat that the applicant felt at this time was so significant that he felt he had to relocate away from Dhaka for a period of months before the situation settled down.

9. The Tribunal is satisfied that an individual, [Mr B], who was influential in the Awami League, facilitated criminal cases being brought against the applicant in 2016. The Tribunal is satisfied that this was both because of the applicant’s involvement in the opposition BNP as well as commercial interests that [Mr B] had in acquiring properties of the applicant’s family business. The Tribunal is satisfied that the applicant was detained on multiple occasions by police as a result of these charges and had to pay multiple bribes to authorities to ensure his release. The Tribunal is satisfied that these false criminal charges remained outstanding at the time of the applicant’s departure for Australia, resulting in the applicant having to take precautions in leaving Bangladesh without being detected by authorities. The Tribunal is persuaded as to the plausibility of these concocted charges remaining outstanding in Bangladesh.

10. The applicant in the hearing indicated that he would wish to continue his political activity on return to Bangladesh and that any reticence to do so would be as a result of his fear as to the consequences from authorities if he continued this activity. The Tribunal accepts this. The Tribunal similarly accepts that the applicant would wish to continue to engage in political protest activity were it not for his fear.

11. The Tribunal explored with the applicant in detail in the hearing his claimed religious activity and harm suffered as a result. While the Tribunal, based on that evidence, was satisfied that the applicant was a practising Hindu and had not insignificant involvement with ISKON, there were particular aspects of the applicant’s evidence, including in relation to claims as to harm suffered as a result, that were not credible.

12. The applicant provided detail as to the claimed attack in Sylhet at an ISKON temple. An inconsistency in this evidence was that in the hearing the applicant indicated that he was injured in this encounter when he had to leap off a balcony to the ground. In contrast, in the interview with the delegate the applicant said that he was not injured. In response to this inconsistency, the applicant explained the inconsistency by stating that he had been nervous in the interview.

13. The applicant’s evidence in the hearing in relation to his written claim of an attack occurring when leaving his local temple on [date] October 2016 lacked credibility on a number of grounds. On multiple occasions in the hearing, the Tribunal asked the applicant to recount the next adverse encounter as a result of his religion that occurred after the attack in September 2016. In relation to initial questions to this effect, the applicant instead referred to the incident that his written claims recount occurred in June 2016 when the priest was harmed in Kishoreganj.  It was not until the question had been repeated on multiple occasions that the applicant gave evidence in line with his written claims as to the significant attack on him on [date] October 2016. The delay in providing this evidence and the prevarication with which it was given did not persuade the Tribunal that the applicant was recounting an event which actually occurred. This is in the context of this being a very impactful harmful event requiring days of medical treatment and being the most immediate adverse event prior to the applicant departing for Australia. In that context, the Tribunal found the applicant’s delay in providing oral evidence of this event concerning in terms of it recounting an event that actually occurred.

14. Additionally, in the hearing the applicant indicated that the injury that he sustained in this attack was a fracture to his skull. This is inconsistent with evidence given elsewhere by the applicant that the attack resulted in an injury to his back. In response to this inconsistency put to him in the hearing, the applicant indicated that he had previously been too scared to reveal the true nature of the injury. The Tribunal does not think that it makes sense that the issue as to whether the applicant suffered a head or back injury would be a source of anxiety for the applicant in providing evidence to the Department or the Tribunal.

15. The applicant has previously claimed that he had a role in his various committees as part of ISKON in monitoring attacks on Hindus and encouraging victims to take appropriate steps. When the Tribunal sought to have the applicant provide detail of this responsibility in the hearing, his responses were not satisfactory, resulting in the Tribunal not being persuaded that the applicant had such a responsibility. As it was, in the hearing the applicant indicated that there was no proactive complaint or approach in relation to attacks on Hindus, just silent religious practice in protest.

16. The cumulative impact of these credibility concerns causes the Tribunal to consider that the applicant has concocted and embellished accounts regarding the level of his involvement in the religious hierarchy and evidence of harm suffered as a result of his religious activity, notwithstanding that the Tribunal accepts that the applicant had some degree of religious adherence and activity.

17. The Tribunal does not accept that the applicant was involved in the ISKON attack that occurred in Sylhet in September 2016, which did occur, as corroborated by independent evidence. The Tribunal is not satisfied that the applicant was injured in the circumstances claimed in October 2016 when leaving the temple. Whilst there is medical evidence of the applicant’s injuries and treatment, the Tribunal does not consider that this corroborative evidence overcomes the cumulative impact of the credibility concerns identified.

18. Notwithstanding these credibility concerns, the Tribunal is prepared to accept that the applicant has over time faced adverse and disparaging comments from Muslims as a result of his religious beliefs and practice. This would be consistent with the status of Hinduism as a minority religion in Bangladesh and there being religious tensions to a degree in the country.

19. While the various credibility concerns identified by the Tribunal in relation to evidence of harm suffered as a result of the applicant’s religious activities causes the Tribunal to more closely scrutinise claims made based on his political involvement, the Tribunal remains persuaded of the truth of the applicant’s claims of harm in relation to his political activity. The Tribunal remains persuaded that the applicant was an active member of the BNP and was involved in regular protest activities. The Tribunal remains persuaded that the applicant has suffered actual incidents of physical harm as a result of political activity. The Tribunal remains persuaded that the applicant was the subject of false criminal charges, partially based on the applicant’s political persuasion, which remain outstanding against the applicant. Independent evidence makes clear the ready use of false criminal charges against BNP supporters.

20. The Tribunal considers that the independent information as to attitude of the governing Awami League in Bangladesh and potential mistreatment of BNP supporters establishes that the applicant faces a real chance of serious harm on return to Bangladesh as a result of both his past BNP membership and activity and his desire to continue to be politically involved in the BNP were it not for the fear that he holds. This includes because the Tribunal considers that the applicant would wish to, were it not for the fear, continue to be involved in protests which the Tribunal accepts exacerbates the risk of serious harm to the applicant to a real chance of harm. The Tribunal considers that the lodging of false cases against the applicant by those in the governing Awami League, with those cases remaining outstanding, constitutes serious harm against the applicant. The Tribunal considers that the applicant’s Hindu and ISKON beliefs considered cumulatively add somewhat to the risk of harm faced by the applicant, albeit the Tribunal not accepting various claims made by the applicant as to physical harm suffered as a result of religious belief and activity.

21. For those reasons, the Tribunal considers that the applicant faces a real chance of serious harm as a result of his political involvement and activity in support of the BNP. The Tribunal is satisfied that the applicant’s political opinion combined to a limited extent with religion are the essential and significant reasons for the harm. The Tribunal is satisfied that the persecution is systematic and discriminatory.

22. The Tribunal considers that the applicant would wish to remain both politically and religiously involved wherever he lived in Bangladesh, were it not for the fear that he holds of continuing with political activity. On that basis, the Tribunal considers that the real risk of serious harm to the applicant relates to all areas of Bangladesh.

23. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country.

24. For these reasons, the Tribunal is satisfied that the applicant faces a real chance of serious harm. The Tribunal is satisfied that the applicant has a well-founded fear of persecution in Bangladesh for a reason set out in s 5(J)(1). 

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

    DECISION

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

    David McCulloch
    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.

    …