1711828 (Refugee)

1711828 (Refugee) [2022] AATA 1916 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711828
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Mr S Norman
DATE:4 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 May 2022 at 11:40am
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – interfaith marriage – applicant wife’s Ahmadiya Jamat faith – wife’s father’s conversion to Ahmadiya Jamat – ostracised by family – pregnancy before marriage – abortion – childless woman – husband applicant supporter of Awami League – political infighting – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants who claim to be citizens of Bangladesh, applied for the visas on 22 December 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant husband (hereafter the applicant) attended the Tribunal hearing on 27 April 2022. The Tribunal was assisted by an interpreter at hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants lodged substantial evidence and submissions (mostly accompanied with translations). Though not all of which has been expressly referred to herein, the Tribunal has considered all material evidence and submissions prior to drafting this decision.
Meaningful opportunity to put their case:
As requested, the Tribunal had arranged for a female interpreter to attend the hearing. However, the Tribunal was subsequently advised the applicant wife was not attending the hearing and the applicant would prosecute the case. The Tribunal decided to proceed with the hearing.
After having lodged numerous evidence and submissions, shortly before a prior scheduled hearing, the applicant said he wished the review to be processed in the quickest possible time. However, given the substantial nature of the further evidence and submissions lodged, the Tribunal was obliged to take further time to consider that evidence and submissions, and the hearing was re-scheduled.
The applicant had also requested advice as to whether documents he had already lodged with the Department should be re-translated - but the Tribunal had access to all evidence lodged with the Department. With the Tribunal, the applicant also lodged a written statement dated 19 November 2021. In that statement, the applicant had requested inter alia the Tribunal verify the authenticity of some or all the documents lodged, with issuers in Bangladesh. As then noted at hearing, the Tribunal said it was aware of high levels of document fraud in Bangladesh, and that (ie) even purportedly legitimate documents may be acquired by illegitimate means.[1]
[1] DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019.
That being said, the Tribunal is aware that it should not fail to make an obvious enquiry about a critical fact,[2] however in the circumstances of this case, I declined to verify the documents (as was requested). As also stated at hearing, the Tribunal may be satisfied it was more appropriate to first assess the general credibility of the applicant/s, and then decide what course of action was appropriate – including what weight it should give to documents lodged purporting to corroborate the evidence.
[2] See MIAC v SZIAI [2009] HCA 39 at [15].
The Tribunal was ultimately satisfied the applicant was given a meaningful opportunity to put evidence and submissions, including at the hearing.
The applicants receiving country / s.36(3)-(5A) of the Act:
The applicants lodged photocopies of the bio-data page of their Bangladesh passports (expiry date 2021[3]). The country information indicated that Bangladesh passports or travel documents, may be renewed in Australia.[4] At hearing, the applicant said he (and also the applicant wife) had renewed his (their) passport – the applicant’s renewed passport was presented at the Tribunal hearing and the expiry date was XXX 2026.
[3] Department – from folio 9.
[4] Renewal of MRP, Bangladesh High Commission, Canberra Australia, Renewal of MRP | Bangladesh High Commission Canberra (bhcanberra.com) , accessed 19 November 2021.
Based on the evidence, the Tribunal will accept the applicants are citizens of Bangladesh, and that Bangladesh is their receiving country.
The applicants’ recent migration history:
As recorded in the delegate’s decision, the applicants’ more recent migration history included:
[Dates of visa applications for Occupational Trainee (Subclass GC 402), Dependant Occupational Trainee (Subclass GC 402), Protection visa (Subclass XA 866) and arrival/departure dates from Australia deleted].
The applicants’ membership of the same family unit:
The applicant (DOB: [deleted]), and the applicant wife (DOB: [deleted]), lodged a Marriage Certificate indicating they had married in Bangladesh (Borguna) [in] April 2007.[5]
[5] Department – folio 2.
The delegate, and now the Tribunal, accepts the applicant wife was a member of the same family unit as the applicant, as defined in r.1.12 of the Migration Regulations 1994 and s.5(1) of the Act.
The applicants’ claims for protection:
The applicant claimed to be able to speak, read and write English, though ‘complex and legal jargon was difficult’ for him.[6] The applicant wife said she could speak, read and write in English, but that her English language competency was ‘very poor’.
[6] Department – folio 39.
The applicant had also lodged numerous press clippings, including about the social impact of an interreligious couple in Bangladesh; that the applicant husband is a non-practising Sunni Muslim and his wife is from the Ahmadiya Jamat - though she does not practice; that the Ahmadiya Jamat was said to be the most persecuted religion in Bangladesh; evidence the wife had undergone an abortion in Bangladesh; evidence of the wife’s fertility treatment in Australia; copy of a medical document dated [in] March 2007 issued by a hospital in Bangladesh; marriage certificate advising the applicants’ marriage took place [in] April 2007; and other documents (for the most part, translations were lodged). As material, this has been discussed below.
With the Tribunal, the applicant also stated his fear is based on religion and membership of a particular social group. He said he feared:
·deprivation of life liberty
·selective harassment of the person as an individual or a member of a group
·threat of harm as part of a course of systematic conduct directed for a Conventional reason against person as an individual or a member of the class
·measures in disregard of human dignity
·serious violations of human rights
·denial of access to employment, to the professions and to education
·imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution
The claimed inter-faith marriage / the wife’s father’s conversion to the Ahmadiay Jamat faith:
With the Protection visa form, the applicant claimed:
·     the applicant is a Sunni Muslim and he married the applicant wife [in] April 2007. The applicant wife was an Ahmadi.[7] However, due to societal discrimination the applicant wife converted to Sunni Islam. Further, his wife had ‘rebelled against the … family and the community to follow the traditional Sunni way of practice’
·     It was further explained the applicant’s family disapproved of the relationship and when neighbours discovered the applicant wife was not a Sunni Muslim, they were ostracised and immediately (though unsuccessfully) relocated to another town to avoid confrontation
·     the applicant said they would face continuous mistreatment if returned to Bangladesh
·When asked by the delegate how neighbours from the new town learnt of the mixed marriage, the applicants replied that neighbours had spread rumours about them and this occurred in every town they resided. The applicants therefore claimed that relocation was not a viable option for them because they would be identified by ‘religious mongers … in a city or small town’
[7] Department – folio 31.
When the delegate then asked where they were married, it was recorded that both applicants provided different venues and locations. The applicant said they were married at [a named] Office (a Registrar Office) in the district of Piroz Pur - and the applicant wife said there were married in mosque in the district of Borguna. The delegate noted the applicants were inconsistent in their accounts regarding their religion (discussed below) and the wedding location.
With the Tribunal, the applicant lodged a written statement dated 19 November 2021. That stated (in part):
·     The applicant referred to his first (attempted) marriage to his wife when they eloped to [Pirojpur] and where they attended a marriage registry office to ‘solemnise the marriage’. However, due to a lack of witnesses, the marriage registrar refused to give them the certificate so they returned to Borguna on the same day (being around 230kms from Dhaka – and where the applicant and the applicant wife had principally resided)
·     The applicant and his wife were later married in a Mosque, in the presence of a few witnesses and friends. In the evening, the Imam notified the local marriage register about the marriage. The applicant later went to an office to collect the marriage certificate. The original marriage certificate was issued in 2007, and that was in the Bengali language. That was subsequently displaced and the celebrant re-issued a new marriage certificate in English which had been lodged with the Tribunal - along with other evidence
·     The applicant said his strict Sunni Muslim family in Borguna, never accepted his wife or the marriage as they did not like anyone outside the Sunni Muslim faith. However, to satisfy his family and in order to have a religious marriage, his wife converted from the Ahmadiya faith to Sunni Islam
·     At hearing, the applicant said he speaks with his mother and brother in Bangladesh, but his father, now retired but formerly in the Bangladesh army, did not approve of the marriage and the applicant and his father do not speak. The applicant also said his aged father had suffered a stroke due to the stress of the applicant’s marriage
·     The applicant said his wife’s grandfather was a Shia Muslim and had come from India to Bangladesh. The wife’s family continued to be Shia, until 1995 when his wife’s father converted to the Ahmadiay Jamat faith. The applicant said that Sunni Muslims in Bangladesh ‘do not have any problem with Shia Muslims but they have a problem with Ahmadiay’. The applicant continued that his wife’s family suffered ‘a lot’ due to the conversion and that this had isolated her family in society
After noting the DFAT advice that there were no legal restrictions on marriage between members of different religious groups, though ‘interfaith marriage is uncommon and is generally regarded poorly within society’,[8] the delegate referred to the following:[9]
[8] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019, at [3.30].
[9] "Interreligious Marriage in Bangladesh: From Human Rights Perspective", Science Publishing Group, l, 28 September 2016, CIS38A80122565; and UK Home Office, 2016, Country Information and Guidance Bangladesh: Minority religious groups 2016, 31 March, OGD7C848D14.
The delegate continued that based on the accepted evidence and the country information considered, they were not satisfied the applicants had suffered ‘years of discrimination’ due to their interfaith marriage, as they had claimed. The delegate accepted the applicant’s family may have disapproved of the relationship as the applicant wife had fallen pregnant prior to marriage (which the Tribunal has discussed below). However, after 10 years of marriage (at the time of the delegate’s decision), the delegate was not satisfied the applicants continued to be ostracised by family members and/or the community. The delegate also noted the applicants had predominantly lived in Dhaka and their extended family members were residing in Borguna, said to be some 10 hours travel away from Dhaka.
However, at the Department interview, the delegate also recorded:
· the applicant wife said she was a Shia Muslim - and that she had never converted to become a Sunni Muslim (or Ahmadiay Jamat)
At the hearing, when this inconsistency was put to the applicant for comment, he said his wife’s father had converted to the Ahmadiay Jamat faith and that as he was the ‘head of the family’, all (at least immediate) family members were also tarnished. The country information stated:
Those who convert to another religion are sometimes ostracized socially for having allegedly converted not for genuine reasons, but for the expectation of material benefits or owing to other non-religious incentives. Sometimes, even the offspring of converts can be ostracized, generations after the conversion. Some converts have actually gone into hiding or concealed their newly adopted faith for fear of social stigmatization.[10]
[10] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 2.0 October 2018.
However, the Tribunal noted that since their April 2007 marriage, the applicant was presumably the ‘head of the wife’s family’, at least as that is considered within Bangladesh. Also, the Tribunal noted it may not accept the applicant wife had ever converted from her Shia Muslim faith (at the Department interview, she is recorded as denying she ever converted from Shia Islam). The applicant said his wife had converted to Sunni Islam, in order to be able to marry the applicant. Regarding mixed faith marriage, the country information stated:
3.30 … Marriage between members of different religious groups can legally occur under civil law. DFAT understands, however, that interfaith marriage is uncommon and is generally regarded poorly within society. [11]
[11] DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019.
And:
2.4.20 Interfaith marriages are reported to be increasing, but are still rare, especially in rural areas. Persons in such relationships may face family resistance and/or community disapproval …
2.4.21 Converts may face ostracism, threats and social stigmatisation.
…..
6.23 A 2016 article published in the International Journal of Education, Culture and Society indicated that mixed marriages in Bangladesh ‘… can present problems, but the mix is not restricted to religion. Sunni/Shia, rich/poor, educated/uneducated marriages can encounter resistance, but this resistance begins in the family. If the family accepts a marriage, so will the community. Such resistance is much more likely to be encountered at the village level than in cities and towns, where mixed marriages are more frequent.
…..
12.1.3 The Special Rapporteur noted: ‘Religious conversions are generally rare and, when they do occur, mostly take place in the context of interreligious marriages.[12]
[12] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 2.0 October 2018.
Next, the Tribunal again noted it may not accept the applicant wife had ever converted from her Shia Muslim faith. The applicant again said his wife had converted to Sunni Islam, in order to be able to marry the applicant.
Based on the evidence, the Tribunal does not accept the applicant wife needed to convert to Sunni Islam in order to marry the applicant. However, the Tribunal will accept the applicant wife had chosen to convert to Sunni Islam, but only in order please the applicant, and in order to engage in a religious marriage ceremony.
That being said, as the wife was (technically) a Sunni Muslim at the time of the marriage, the Tribunal was not satisfied the applicant or the applicant wife, have a real chance of suffering serious (or significant) harm in Bangladesh for reason of their claimed, mixed-faith marriage (the Tribunal has discussed inter alia the wife’s religious conversion below). That is because the Tribunal does not accept the applicant and his wife participated in a mixed-faith marriage.

However, the Tribunal will accept the applicant wife (in particular) may have suffered the displeasure of her family and (possibly) community members, from either the Shia faith or the Ahmadiay Jamat faith. However, apart from a few accepted incidents in and around her parents’ home area (Borguna), the Tribunal was not satisfied that any harm suffered by the applicants in their now home region of Dhaka (where they resided), amounted to serious (or significant) harm (though I have discussed this below).
Next, and even accepting the applicant wife’s father converted to the Ahmadiay Jamat faith, and accepting that such persons or even their offspring, may be targeted for harm in Bangladesh, in the present case the applicant wife never converted to the Ahmadiay Jamat faith, and the Tribunal does not accept she would now be tarnished by her father’s conversion, given first, the applicant is now the head of her family (at least as that is understood in Bangladesh), and both the applicant and the applicant wife do not reside near their parents, as they live in the safety of Dhaka.
Next, the applicant also resided principally in Dhaka from 2000 until 2015 (except for a 21 month period) – and the applicant wife resided in Dhaka for a similar period. In the circumstances, the Tribunal accepts that Dhaka is the applicants’ home region in Bangladesh. The applicant’s parents still resided in a village near Borguna (some 230kms south of Dhaka); and the applicant wife’s family still reside near to the applicant’s family. The applicant did say his father (and possibly others) disapproved of the marriage, and that the applicant’s family were allegedly strict Sunni Muslims, however, the applicant continued to speak with and was assisted by his brother and he continued to speak with his mother.
Notwithstanding his claims to the contrary, the Tribunal was satisfied that in Dhaka (their home region in Bangladesh), the applicants enjoyed safety, and an apparently stable employment and residence. For all the reasons set out herein, including that the Tribunal is satisfied the applicants safely resided in Dhaka for many years even after their marriage, the Tribunal was not satisfied the applicants suffered serious (or significant) harm in Dhaka. Therefore, the Tribunal is not satisfied the applicant or the applicant wife, would have a real chance of suffering serious (or significant) harm by any family member, or anyone from their parents’ home region (Borguna), should they now return to their home region of Dhaka in Bangladesh.
Next, and regarding their Dhaka residence, the delegate noted the applicants claimed they were not able to rent properties because landlords refused their application based on their interfaith marriage. The country information stated:
4.7.1 … It is difficult for single women to rent a place to live in Dhaka or anywhere since society does not accept this and the state fails to assure security. … [13]
[13] Country Policy and Information Note Bangladesh: Women fearing gender[13]based violence Version 3.0 June 2020.
The Tribunal noted it had not seen any evidence that persons within an interfaith marriage were denied rental accommodation in Bangladesh. The applicant believed this was nonetheless the case. On another matter, he did say that discrimination is regular in Bangladesh but it may not be reported. However, the Tribunal said if such discrimination was regular, it may have anticipated more regular reporting. Be that as it may, and after noting the applicants fairly stable residence (of about two years duration in each apartment in Dhaka), I said I may not, and now do not, accept that persons in a mixed-faith marriage (which I do not accept reflected the applicant’s actual or perceived circumstance), or the applicants in particular, would be denied rental accommodation in Bangladesh, for any reason.
The applicant wife’s pregnancy before marriage:
With the Protection visa application, the applicant claimed:
· the applicant wife’s pregnancy before marriage caused outrage amongst family and religious fanatics in their local area and in Dhaka. The applicants were not able to escape the wrath and had been ostracised by the community
The delegate recorded that both applicants claimed to have suffered societal discrimination due to inter alia the applicant wife’s pregnancy before marriage. The country information stated:
Rahima Khatun (name changed for security reasons), 15, decided to move to Dhaka to live with her brother, who makes his living pulling rickshaws.
However, her decision took a horrific turn when, soon after reaching the city, she was kidnapped by a gang on the streets who repeatedly raped her for two weeks.
Her family was just glad to get her back and did not inform the police about her disappearance. Six months later they discovered, to their surprise, she was 30 weeks pregnant.
They could neither take her for abortion nor help her give birth at home because of the social stigma associated with pregnancy before marriage in deeply the conservative society of the Muslim-majority Asian country.[14]
[14] Bangladesh charity offers hope to unwed pregnant girls, EFE, Agencia EFE, 28 February 2017, Bangladesh charity offers hope to unwed pregnant girls | Efe | English edition | Agencia EFE, accessed 22 April 2022.
At hearing, the applicant advised the Tribunal the applicant wife was pregnant in 2006/2007, that in early 2007 the applicant wife underwent an abortion, and the applicants then married in April 2007. As the applicant wife’s pregnancy caused outrage amongst family and religious fanatics in their local area (Borguna) and in Dhaka, the applicant and his wife returned to Borguna (between March 2009-November 2010). For the remainder of the period between 2000 and 2015, the applicant and the applicant wife lived and work in apparently stable circumstances in Dhaka. Therefore, and whatever harm the applicants may have faced at the time of the abortion and marriage, the Tribunal is satisfied they were able to able to safely and reasonably return to their (now) home area of Dhaka, and by so doing avoid, and continue to avoid, a real chance of serious (or significant) harm.
In the circumstances, the Tribunal has decided to accept the applicant and the applicant wife suffered stigma and intolerance at the time of the applicant wife’s pregnancy, in particular, in and around their family homes in Borguna. However, there is not a real chance the harm arising from that treatment, would now amount to serious (or significant) harm, particularly in the applicants’ home region of Dhaka.
The 2007 (and other) attack:
The applicant said he had been attacked by religious hooligans when he visited a sick relative near Boguna. With the Tribunal, the applicant had also lodged what appeared to be a report to the Officer in Charge of the [Police] Station referring to an incident [in] October 2016 (at which time he had briefly returned to Bangladesh) when he and another man were confronted, intimidated and warned and told to leave the country and if he returned, he would be killed. However, the Tribunal understood this had occurred in Borguna. Given the applicant and the applicant wife’s home region was in Dhaka (some 230kms to the north), and given the Tribunal is not satisfied they were traced there in the preceding 8 years, the Tribunal is satisfied there is no more than a remote chance the applicant would again be intimated and warned to leave, or that they would suffer any other serious (or significant) harm, if he and his wife returned to Dhaka.
When then discussed at hearing, the applicant conceded he was only claiming to have been the subject of one physical assault in Bangladesh. That was as follows:
· the applicant said he was attacked by religious hooligans in his local area (being Borguna) when he returned to Bangladesh to visit a sick brother. He had filed a complaint with the police but no action was taken
The Tribunal understands the above assault and the following assault, are one and the same:
·     It was claimed the applicant wife was physically harassed and assaulted by passengers on a ship from Patuakhali to Dhaka[15] because she was pregnant, unmarried and about to marry a Muslim (this occurred in 2007). The applicant wife reported the incident to the police; however they did not help her and they instead, harassed her when they discovered why she had been assaulted
·     At the hearing the applicant said the attack occurred within around 200 meters of the applicant wife’s parents’ home, and that local people were the attackers. However, the delegate recorded the applicant wife as also claiming:
·     the applicant wife said she had never been physically harassed or assaulted by an unknown group on a ship from Patuakhali to Dhaka. She said her husband had an altercation with an unknown group on the ship, however she was not involved
[15] Department – folio 31 (reverse side).
Regarding the claimed attack of the applicant wife on the ship from Patuakhali to Dhaka, the delegate (and the Tribunal) referred to the different version of events provided by the applicant and the applicant wife. In particular the applicant wife in her first version said she was never attacked or confronted on the vessel. She later said an unknown group followed her onto the ship and her husband had an altercation with the group. The applicant wife said she was not aware of the issue between her husband and the unknown group. When repeatedly asked by the delegate whether she was attacked by anyone, the applicant wife said no. This was also part of the reason the delegate was satisfied the applicant’s claims were false.
With the Tribunal, the applicant lodged a written statement dated 19 November 2021. That stated (in part):
·     Regarding the wife’s claimed attack on a ship, he said that in Bangladesh culture women do not open their mouth even when they are sexually harassed or raped. He said his wife was quiet and very introverted. He then said his wife was shocked at the Department interview when asked by the delegate whether she was assaulted by the attacker in public - and this was exacerbated by the presence of a male Muslim Bangladesh interpreter
·     the applicant had reported the incident to the on-board security force but they did not take any action against the attackers when they came to know the reason for the conflict and the political identity of the attackers (though when discussed at hearing, the applicant did not claim any related ‘political identity’, only that the attackers were local people who knew the wife was pregnant and unmarried)
·     the applicant continued that the ‘security force’ did request the applicant and his wife to depart the ship early on arrival to Barisal, in order to not meet the attackers. The applicant and his wife then caught a bus from Barisal to Borguna on the same day
At the Tribunal hearing, the applicant said notwithstanding his wife’s previous evidence, she was aware of the reason for the attack. That reason was due to her being unmarried and pregnant.
However, given the fairly substantial inconsistency between the applicant and the applicant wife’s evidence, and given the Tribunal was ultimately satisfied the applicant was not generally credible, I have rejected all evidence of the attack, on either the applicant or the applicant wife, as false.
The wife’s abortion / the applicant wife’s infertility:
In the applicants’ written statement dated 19 November 2021, it was stated:
·     due to the applicant wife’s abortion in Bangladesh, she is past her ‘fertility capacity’. He said this was due to the ‘doctors wrong action in Bangladesh’. He said his wife became a ‘potential victim of the medical malpractice in Bangladesh which is normal and regular’
·     He said his wife’s incapacity to have a child will be a huge social burden on her in Bangladesh. He said he and his wife are attempting IVF in Sydney but so far all efforts have not been successful
·     He said in Bangladesh, family is important, and a woman who is not fertile is treated like an animal and regarded as the ‘most unlikely human being on earth’
·     He said such women are intimidated and taunted, in both rural and urban areas, and he requested the Tribunal check this ‘superstition or taboo’. He said this would cause his wife to be depressed and may lead her to suicide
·     The applicant also lodged an article titled ‘Suffering of childless women in Bangladesh: the intersection of social identities of gender and class’ dated 3 December 2011’
·At the Tribunal hearing, the applicant also commented on the applicant wife’s psychiatric issues, but no corroborating evidence was provided
·     He said he could not relocate within Bangladesh due to the social stigma (related publications were lodged – including suggesting that social stigma may be suffered particularly by childless women in rural areas). He said even if he and his wife were able to relocate to avoid ongoing humiliation and harassment, this would not be a permanent solution. He said people would come to know about their childless family status – and that ‘word would soon spread of their return and living’. He said the situation in Bangladesh and Australia is different
·     The applicant also referred to a April 1993 article which said internal relocation is not a viable option and that people do not generally migrate around the country except for marriage or when transferred to different places for employment. He said an outsider like himself and his wife would create interest in the neighbourhood – including amongst the ‘superstitious Muslim fanatics’
Next:
·     The applicant also said his parents, siblings and other relatives would be very critical of his childless wife and they will force him to divorce his wife and marry again. He said he did not wish to do this. He said he would also be pressured to marry a woman of the Sunni faith
Regarding abortion in Bangladesh, the country information stated:
In Bangladesh, abortion is illegal except to save a woman’s life, though menstrual regulation (MR) is permitted. MR involves the use of manual uterine aspiration or Misoprostol … to induce menstruation up to 10–12 weeks from the last menstrual period. Despite the availability of safe and legal MR services, abortions still occur in informal setttings and are associated with high complication rates, causing women to then seek post abortion care …[16]
[16] Out-of-clinic and self-managed abortion in Bangladesh: menstrual regulation provider perspectives, 25 March 2021, Reproductive Health, Out-of-clinic and self-managed abortion in Bangladesh: menstrual regulation provider perspectives | Reproductive Health | Full Text (biomedcentral.com) , accessed 22 April 2022.
After having discussed it at the hearing, the Tribunal will accept the applicant wife underwent an abortion in Bangladesh, shortly prior to the applicant’s marriage in April 2007. Given there is no evidence to the contrary, the Tribunal will accept that neither the applicant nor his wife were subject to any legal issue as a result of the abortion, and based on the evidence, that there is not a real chance they would be on return to Bangladesh. Further, and given the country evidence of ‘high complication rates’ for those who undergo abortion in Bangladesh, the Tribunal will also accept the applicant wife’s capacity to bear children was damaged due to this apparently unlawful abortion.
Regarding childless women in Bangladesh, the country information stated:
…the rural childless women experience strong stigma in society, as their identity is devalued due to their inability to produce children. As a result, they suffer from feelings of guilt, role failure, loss of self-esteem, abandonment by the family, social isolation, and impoverishment. In contrast, because of their relatively high socio-economic status and good educational background, urban childless women have more opportunities to avail themselves of alternative social identities and thus avoid social isolation. Despite these differences, both groups of women lead frustrated lives, burdened with a deep sense of guilt for not being able to produce children.[17]
[17] Suffering of childless women in Bangladesh: The intersection of social identities of gender and class, December 2011, (PDF) Suffering of childless women in Bangladesh: The intersection of social identities of gender and class (researchgate.net) , accessed 22 April 2022.
After putting the gist of the above information to the applicant at the hearing, and given that childless women in Bangladesh may ‘suffer from feelings of guilt, role failure, loss of self-esteem’ the Tribunal accepts the applicant wife may suffer from some anxiety or depression in Bangladesh, as a result of not being able to bear children. However, the applicant wife has resided in the city of Dhaka for around the same period as the applicant (almost 15 years), and the applicant wife has obtained a [degree] at a university in Dhaka; and as a consequence, she is an urban childless women with more opportunities to avail herself of an alternative social identities and thus avoid inter alia social isolation.
The applicant also said that even shop keepers do not serve childless women in Bangladesh. The Tribunal noted it had not seen any material corroborating evidence of this, but the applicant said that maybe it was not reported. As noted herein, the Tribunal said that if such discrimination was regular (as was claimed), it may have anticipated more regular reporting. However, the Tribunal does not accept that childless women are refused service in Bangladeshi shops, particularly in large cities like Dhaka.
Next, if the applicants wished to care for a child, the Tribunal understood that Bangladesh has a population of just over 163 million persons,[18] and there were around 4.8 million orphans.[19] Though the Tribunal also understood that adoption is not lawful in Bangladesh, the law allows couples, one of whom must be a Bangladesh citizen, to apply for guardianship or custody of a Bangladesh child. When asked if the applicant and his wife had considered seeking guardianship, the applicant said he feared the child may return to its biological parents when grown, he said this is what had occurred to a child for whom guardianship had been obtained by one of his extended family members, but he later said he was not concerned about such a child returning to their biological parents. In the circumstances, the Tribunal understands this had not been considered, or at least pursued by the applicant or the applicant wife.
[18] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019, at [2.5].
[19] Orphan Aid: Help support an Orphanage in Bangladesh!, Orphan Aid: Help support an Orphanage in Bangladesh! | Chuffed | Non-profit charity and social enterprise fundraising , accessed 27 April 2022.
That being said, the Tribunal will accept the applicants, and particularly the applicant wife, suffered some guilt at not being able to bear children. However, given her own relatively high socio-economic status and relatively superior educational background (as a tertiary educated women), given her home area in Bangladesh was an urban area, the Tribunal is satisfied the applicant wife would have the opportunity to avail herself of an alternative social identity/s and thus avoid social isolation. By so doing, the Tribunal will accept the applicant wife (and the applicant) would not suffer serious (or significant) harm as a childless woman in Dhaka.
Based on the country information considered, the Tribunal will accept the applicants may be identified as a childless couple in Dhaka. However, none of the evidence considered has satisfied the Tribunal they would suffer serious (or significant) harm for this reason in their home region of Dhaka.
Next, regarding the applicant’s claim that his own family (in Borguna) would force him to divorce his childless wife, the Tribunal noted the applicants married in 2007 and did not depart Bangladesh for some 8 years; and in that time they did not divorce. Furthermore, and notwithstanding the applicant’s claim that family is important in Bangladesh, the Tribunal is not satisfied the applicant would be forced to divorce his wife, presuming he did not wish to, if he returned to reside and work in his home region of Bangladesh, being Dhaka. Neither is the Tribunal satisfied the mere criticism of him by his family, even if true, would constitute serious (or significant) harm in Dhaka.
The applicant wife’s religious conversion:

In the applicant wife’s written PV application, it was claimed she was a Ahmadiya Jamaat Muslim (and to have been disowned by a local Imam).[20] The country information stated:
[20] Department – folio 26.
3.33 There are no laws prohibiting religious conversion in Bangladesh. DFAT assesses that individuals converting from Islam to another religion (generally Christianity) are more likely to face societal pressure than are individuals converting to Islam. …[21]
However:
‘Those who convert to another religion are sometimes ostracized socially for having allegedly converted not for genuine reasons, but for the expectation of material benefits or owing to other non-religious incentives. Sometimes, even the offspring of converts can be ostracized, generations after the conversion. Some converts have actually gone into hiding or concealed their newly adopted faith for fear of social stigmatization.[22]
And:
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.[23]
And:
2.4.20 Available evidence suggests that government officials have different opinions regarding Ahmadis. Whereas some maintain a neutral position on religious issues; others have openly declared Ahmadis as non-Muslims.[24]
[21] DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019.
[22] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 2.0 October 2018.
[23] DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019.
[24] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 3.0 March 2022.
When questioned by the delegate separately from her husband, the wife said she was a Shia Muslim and had never converted to become a Sunni Muslim. The delegate continued that later in the interview the applicant wife had mentioned that she sometimes attended Ahmadiyya mosques with her family prior to marrying the applicant. The delegate questioned the applicant wife about her Ahmadiyya beliefs, but found that her responses were vague and inconsistent with country information. When asked if she had any evidence about her claimed Ahmadiyya faith (which she had lodged in writing), the applicant wife did not lodge any further support of the claim. Further, the applicant wife said she did not attend an Ahmadiyya mosque in Australia.
As was claimed at hearing, the Tribunal will accept that people of the Ahmadiya Jamaat faith may be targeted in Bangladesh. However, and when asked what his wife speaks about with her family in Bangladesh and during her telephone calls to her brother in Bangladesh (she did not speak to her mother or father), there was no claim that any family member was harmed, harassed or even questioned in Bangladesh. Furthermore, though offspring of converts can be ostracized, generations after the conversion, as the applicant wife now resides within the family headed by the applicant, and some 230kms distance from her parents, the Tribunal said (words to the effect) it may not accept the applicant wife would be harmed for reason of her father’s conversion (which the Tribunal accepts is true), in her home region of Dhaka. Further, the applicant wife neither practised the Ahmadiya Jamaat faith nor attended a Shia Muslim mosque, even in Australia – and the Tribunal does not accept the applicant wife is of the Ahmadiya Jamaat faith. The Tribunal will accept the applicant wife is more closely aligned as a non-practising Shia Muslim.
The applicant then said people in Bangladesh may gossip and then the discrimination may commence. The country information stated:
11.4.1 Several sources consulted, during the Home Office FFM to Bangladesh in May 2017, observed that people were not generally open about having a lack of religious belief, for social and cultural reasons.[25]
[25] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 2.0 October 2018.
There is no evidence the applicant or the applicant wife had any wish or intention to speak up about their religious non-practise, either in Australia or Bangladesh. For instance, the applicant did not claim that he or his wife where members of any clubs, organisations or groups in Australia, which might have indicated some political or other aspiration. Further, there is an apparent rise in secularism in Bangladesh (which has clashed against a concurrent growing Islamisation – see below country information).
That being said, the Tribunal will accept the applicant wife angered her family in Borgna (though she still speaks with her brother) inter alia when she technically converted to Sunni Islam – though the Tribunal accepts she is not a practising Sunni Muslim and only did this to marry the applicant in a religious ceremony. The Tribunal also accepts the applicant wife does not hold herself out as, or consider herself to be, a Sunni Muslim. Therefore, the Tribunal accepts the applicant wife is neither of the Ahmadiya Jamaat faith nor a Sunni Muslim. The Tribunal believes the applicant wife would be more closely aligned with Shia Islam – though she does not practise this in Bangladesh or Australia. Accordingly, though the Tribunal accepts the applicant wife technically converted to Sunni Islam (in order to engage in a religious marriage ceremony), I do not accept the applicant wife genuinely converted from Shia Islam.
The Tribunal also notes the applicant’s claim that in Dhaka, as in other areas of Bangladesh, people may gossip and the applicant wife’s circumstances may become more well known, and discrimination may then mount. However, given the fact that persons may choose not to be generally open about having a lack of religious belief, the Tribunal is satisfied the applicant and his wife could similarly not to be generally open about their lack of religious practise in Bangladesh. More importantly, none of the accepted evidence herein, has satisfied the Tribunal the applicants would wish to speak about or otherwise discuss, their lack of religious practise, either in Australia or Bangladesh.
The Tribunal is therefore not satisfied the applicant, or the applicant wife, have a real chance of suffering serious (or significant) harm for reason of the applicant wife’s claimed religious conversion, should they return to their home region of Dhaka.
Atheism/ non-practising Muslim:
The applicant lodged a written statement dated 19 November 2021. That stated (in part):
· The applicant was never a practising Muslim, but as he was born into a strict Sunni Muslim family in Borguna, he was regarded as a Sunni by the outside world due to his family’s identity
The country information stated:
11.3.1 The National Human Rights Commission (NHRC) told the FFM delegation that they believed atheists or agnostics would not reveal their irreligious orientation as they would fear a backlash, as happened against secular bloggers by the group Hefazat-e-Islam. Another source said that there was a growing secularism in the country, which clashed against a concurrent growing Islamisation. Journalists said that, in Sylhet, the renouncing of religious belief was simply seen as personal and that, at most, a person would be deprived of their family rights
…..
11.4.1 Several sources consulted, during the Home Office FFM to Bangladesh in May 2017, observed that people were not generally open about having a lack of religious belief, for social and cultural reasons.[26]
And:
6.5.9 Freedom House’s Freedom in the World report 2021 noted: ‘Those with secular or nonconformist views can face societal opprobrium and attacks from hardline Islamist groups.’[27]
[26] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 2.0 October 2018.
[27] UK Home Office, Country Policy and Information Note Bangladesh: Religious minorities and atheists Version 3.0 March 2022.
When then questioned at the Tribunal hearing, the applicant said he still believed in God, but he did not practise the Sunni Islam faith. The Tribunal understands that only around 53% of Muslims in Bangladesh say they visit the local mosque once per week; women are much more likely to say they never attend mosque in Bangladesh (+75%); though fasting during Ramadan is practised by the overwhelming majority in Bangladesh (96%).[28]
[28] Chapter 2: Religious Commitment, Pew Research Centre, 9 August 2012, Commitment to Islam | Pew Research Center , accessed 27 April 2022.
At hearing, the applicant conceded that he and the applicant wife did not practise their religions in Australia, and neither did they do so in Bangladesh (the applicant said he ceased to practise while at university – and which he ceased in 2009). The Tribunal accepts this is correct. Based on the country information, the Tribunal will accept neither the applicant, nor the applicant wife, would be able to safely reveal their non-religious practise in Bangladesh, without fearing backlash. However, as noted above, the Tribunal is not satisfied they would even wish to do so in Bangladesh. Further, in the period the applicants resided in Bangladesh after ceasing their religious practise, the Tribunal is not satisfied they were subject to any harm in Dhaka, for this reason.
Should the applicant or the applicant wife fail to attend mosque in Bangladesh, given the fact the majority of Muslims in Bangladesh fail to do so on a weekly basis, the Tribunal does not accept this would give rise to real chance of them suffering serious (or significant) harm in Bangladesh.
The Tribunal notes the applicants may not be able to eat or drink in public during Ramadan, if they wish to avoid conflict (though they could eat and drink discreetly during daylight hours). However, given I am not satisfied they are more than uncaring about any religious practise in Bangladesh, I am satisfied they could take reasonable steps to modify their behaviour in order to avoid any related harm – ie eat or drink discreetly during the daylight hours of Ramadan (pursuant to s.5J(3) of the Act). Based on the accepted evidence, neither am I satisfied that by so doing, the applicants would be required to act in a manner not permitted by s.5J(3)(c) of the Act.
Next, the applicant did say that persons in Bangladesh may gossip and his (and his wife’s) situation would be ‘soon discovered’. However, the Tribunal does not accept they would wish to express their non-religious practise either in Bangladesh or Australia. In this way, the chance of them suffering serious (or significant) harm, is remote.
Accordingly, the Tribunal is not satisfied the applicant or his wife, would have a real chance of suffering serious (or significant) harm in Dhaka, for reason of their failure to adhere to their religious practise.
The Awami League:
In his PV form, the applicant had claimed he was the victim of internal political conflict within the Awami League party. He explained he had been involved in politics since his ‘student hood’. He said he was a student political leader and was ‘very straightforward in political views and opinion which caused him problems even within his own party’.[29] He understood the Awami league was currently in power but the ‘administration failed to protect him and his wife’. He claimed he held [a position] of [a district] for the Awami League.
[29] Department – folio 31.
Post interview documents included some from purportedly ‘prominent members [to] verify the applicant’s involvement with the Awami League. However, the delegate noted the translations were made by an unaccredited translator and the documents were only scanned copies. The delegate was also unable to determine if the lodged documents contained any security features that may attest to their authenticity. Be that as it may, the delegate accepted the applicant was a low-level member of the Awami league.
With the Tribunal, the applicant lodged a written statement dated 19 November 2021. That stated (in part):
·     The delegate accepted the applicant’s political activities/affiliation with the Awami League, but at a lower level than claimed. The applicant disputed this
·     The applicant then conceded his political problem is now almost faded away due to his long-time absence
·     Be that as it may, he also said he believed he would have serious problem because of his past political association and ‘internal conflict’
·     The applicant then said he did not want to discuss anything further about his political claim with the Tribunal
At hearing, the applicant told the Tribunal he ceased his political activities in Bangladesh in 2104; and he had not engaged in any related activities in Australia.
The Tribunal then advised the applicant it did not propose to make his case, but it understood he did not wish the Tribunal to consider any claim relating to his alleged prior political activities, when assessing whether he was a person in respect of whom protection obligations were owed in Australia. The applicant eventually agreed this was correct.
Accordingly, and based on those claims he had provided, and given his concession, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Bangladesh, for reason of his claimed prior political activities with the Awami League.
Failed asylum seeker:
The country information stated:
5.30 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.[30]
[30] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019.
At hearing, the Tribunal put the gist of the country information to the applicant for comment, and then said that without more, it had not seen material evidence that merely for remaining outside Bangladesh for a lengthy period (or in a western country), or for applying for Protection outside Bangladesh, such persons had a real chance of suffering serious or significant harm on return to Bangladesh. The applicant then repeated some of the evidence resolved above. Based on the accepted evidence herein, the Tribunal is not satisfied the applicant had a real chance of suffering serious or significant harm, should he (and his wife) return to Bangladesh as failed asylum seekers.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Mr S Norman
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 1916

4 May 2022

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