1711907 (Refugee)

[2022] AATA 709

1711907 (Refugee) [2022] AATA 709 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1711907

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:11 February 2022

PLACE OF DECISION:  Sydney 

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

Statement made on 11 February 2022 at 12:05pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – religion – Hindu – Hare Krishna – International Society for Krishna Consciousness (ISKCON) supporter – Bangladesh Hindu Buddhist Christian Unity Council member – fear of killing – attacks by Muslim extremists – threatening phone calls and letters – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MZAKC v Minister for Immigration and Anor [2016] FCCA 834
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZSSM v Minister for Immigration and Anor [2013] FCCA 1489
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 dependants.

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 12 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Bangladesh, applied for the visas on 19 December 2016. The delegate refused to grant the visas.

3. The first named applicant (‘applicant’) and the second named applicant (‘applicant wife’), appeared before the Tribunal on 9 December 2021 at 1pm. The third named applicant (‘applicant son’) and fourth named applicant (‘applicant daughter’) are minors and did not give evidence. During the hearing, the Tribunal at the applicants’ request took evidence by phone from a lawyer in Bangladesh, [Lawyer A]. The Tribunal was assisted through the use of an interpreter in the Bengali and English languages. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

4. The Tribunal conducted a second hearing on 15 December 2021 at 9am.  Again, this was attended by the applicant and the applicant wife. The Tribunal was assisted through the use of an interpreter in the Bengali and English languages. The applicants’ migration agent attend the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.

11. The Tribunal is satisfied on the evidence that the applicant wife is the spouse of the applicant, and that the applicant son and applicant daughter are dependent children of the applicant. The applicant wife, applicant son and applicant daughter are therefore members of the same family unit as the applicant.

    Mandatory considerations

12. 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. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 22 August 2019, a copy of which was given to the applicant in advance of the first hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is the credibility of the applicant and applicant wife and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The applicant, applicant wife and applicant son arrived in Australia on a tourist visa [in] November 2016. The applicant daughter was born in Australia. The applicants applied for protection on 19 December 2016.

15. The following information is apparent from the application for protection forms. The applicant was born on [date] in Dhaka, Bangladesh. The applicant is a Hindu of Bengali ethnicity who speaks, reads and writes Bangla and English (limited). The applicant’s father is deceased, and his mother resides in Australia along with [specified family members]. [One sibling] resides in [Country 1] and one [brother] resides in Bangladesh. The applicant is in contact with his relatives in Bangladesh by phone. The applicant lived in Munshiganj, Bangladesh from [birth] until February 1992. The applicant then lived in Dhaka, Bangladesh from March 1992 until December 2000, and then moved to a different address in Dhaka from January 2001 until June 2014, and to another address in Dhaka from June 2014 until November 2015. The applicant then lived in [a location in] Bangladesh from November 2015 until November 2016.

16. The applicant attended [College 1], Dhaka [between specified years]. The applicant then completed a [Qualification 1] from [College 2], Dhaka. The applicant worked as the manager of [Employer 1] in Dhaka from January 2003 until December 2008. The applicant was then the owner of a [business] at [Location 1] from December 2008 until November 2016. The applicant also worked as a junior executive officer at [Employer 2] in Dhaka from January 2011 until November 2016. The applicant has since been unemployed.

17. The applicant and applicant wife married [in] March 2010 in Dhaka, Bangladesh.

18. The applicant wife was born on [date] in Dhaka, Bangladesh. The applicant wife is a Hindu of Bengali ethnicity who speaks, reads and writes Bengali and English. The applicant wife’s parents and [family members] reside in Bangladesh and is not in contact with her relatives outside Australia. The applicant wife lived in Dhaka from [birth] until March 2010, and then lived in the same addresses as the applicant in the following years. The applicant wife attended [a named] School in Dhaka and has never been employed.  

19. The applicant son was born on [date] in Dhaka, Bangladesh. The applicant son is a Hindu of Bengali ethnicity who speaks Bengali. The applicant son lived in the same addresses as the applicant and has no employment and education history.

20. The applicant daughter was born on [date] and was not included in the original application for protection.

21. The applicants have not travelled to any other countries in the last 30 years and disclose no convictions.

22. The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):

    I was born on [date] in Munshigonj, Dhaka in Bangladesh.

    I am a Bengali and a Hindu. We worship lord Krishna whom we believe is the incarnation of Supreme God Vishnu. I am a member and follower of The International Society for Krishna Consciousness (ISKCON). The main objective of the ISKCON is to spread and proselytizing Krishna consciousness throughout world.

    I have [specified family members]. I got married [in] March 2010 and have one child.
    I studied at [College 1] [between specified years] and completed year 11. After that I studied at [College 2] and completed [Qualification 1].

    From my childhood I involved with Krishna Temple and used to go with my father to listen Krishna Bhajan. When I was [age] years old I suffered from serious fever (Typhoid) and though my parents had taken me to the doctors, they had tried their level best to cure my fever. During that time, my family and relatives used to sit around me and started chanting the Maha Mantra 'Hare Krishna Hare Krishna Krishna Krishna Hare Hare, Hare Rama Hare Rama Rama Rama Hare Hare'. Inspired by the chanting, I also chanted the Maha Mantra and I could feel that the touch of lord Krishna and my fever gradually reduced. People in my locality started saying that Krishna saved me. This incident had in fact showed me the hand and power of lord Krishna and confirmed my believe that if we chant Maha Mantra Krishna would come and help us. It is my belief and still I believe that. I used to go to the Krishna Temple at [a location] and involved with the Krishna Bajan. Though I was out of the danger from Typhoid, however, due to the medicines and the effects of Typhoid my memory power got affected and I failed in my studies.

    In 1992, I moved from my village to Dhaka to live with my [specified family members]. In [year], I passed [grade] from [College 1] however, I failed twice in [another grade].

    In 2000, I joined [a Qualification 2] course at [College 3] but failed in English subject. As a result of that I could not get my Certificate. I was so upset and only time and place which gave me mental peace was the time I did my chanting praising Krishna. I believe there is an eternal connection between Krishna and me and believe that he would protect me from the problems. Though I failed in getting the certificate, due to my practical work, the institute sent me to [Employer 3] for 3 months training where I had successfully completed that course and received Certificate. This was another incident which showed me that Krishna is with me to protect me. During that time, I used to go [two named temples] and engaged in praying Lord Krishna by chanting the Maha mantra. During that time, I used to work in a Fast food Restaurant from 2003-2008, which was run by my [brother] and his friends.

    In end 2008, I joined [a Location 1] business and also continued to work with. my [brother], In 2010 I started going to ISKON because ISKON used to engage in Chanting Krishna and praising him. I actively involved with the temple in helping them to organise Shanda Aratee and Pooja. I learned from ISKON regarding how to conduct the Pooja. From time to time, I used to go to my village to spread Swami Prabhupada's Krishna consciousness. In my view, Swami Prabhupada's Bhagavad Gita is simplified and easily understandable to common people and therefore, it is easy to convince the people to spread the news and principles of Krishna consciences. I used to engage in chanting and play song praising Krishna to promote ISKCON. Though, many people know and believe in Krishna but ISKCON temple is more organised way to spread Krishna's Consciousness. That's the reason, I actively involved in promoting ISKCON's teachings and Swami Prabhupada's message to the world to spread Krishna consciousness. I also involved with the Dhaka ISKCON.

    Even after my marriage in 2010, my wife and I used to go to ISKCON and other temples for our religious activities. My wife is happy for me to involve with ISKCON and due to that I was able to get time to involve and spread the message to people about Krishna. On [date] we were blessed with a baby boy and we felt that it was the blessing of lord Krishna. We named him as [name].

    In 2011 I joined [Employer 2] as a Junior Office Executive and worked till I left Bangladesh. In the meantime, I also became the member of Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) in 2012 and actively engaged with the activities of the organisation including promoting the rights of the minorities: Due to involvement and commitment, I was appointed as the [Position 1] in 2013 at [named] Division.

    Due to my association with the ISKCON and the BHBCUC, I was able to encourage people and through that was able to highlight the human rights abuses against minority religious group in Bangladesh. For that, I received helped from other ISKCON members and colleagues of the BHBCUC.

    In 2015, I became a life member of the ISKCON which I felt I am blessed to become a life member. I used to go to slum areas and among poor people to distribute free books about Krishna and books written by Swami Prabhupada. I used to explain them in simple terms about the life of Krishna and how he managed to face problems and how he saved people and said his life is an example for a young person to face all the odds. I also explained to them how he protected people from thunder and rain by lifting the mountain and said if we believe him, he would provide shelter and helped people. I also explained to them how Krishna helped poor people and helped to achieve justice and peace in the world.

    As a ISKCON member and activist my responsibilities include:

    a.Spreading and promoting the concepts, principles and life of Krishna and Bhagavad Gita.

    b.Spreading Krishna consciousness articulated by Swami Prabhupada.

    c.Encouraging Hindus and non-Hindus to learn about Krishna and his message to the people.

    d.Engaged in chanting Maha Mantra, and Kirtna and explain to the people about the power of Maha Mantra and explain to them how to chant.

    e.Involved and helped the organiser in [a named] Festival.

    f.Helped the priests in organising and arranging the Poojas.

    g.Helped to prepare food and distribute during the festive season.

    h.Helped to organise cultural programs and religious programs

    As a Member of the BHBCUC I used to involve in passing messages to the non­ governmental organisations about the human rights abuses against minorities in Bangladesh. I used to communicate with them directly or sometime through the senior members about the concerns of the minorities and encourage them to take the matter to the wider community.

    Due to my involvement with the ISKCON in spreading Krishna Consciousness and encourage Hindus and non-Hindus to follow the path of Krishna outlined by Swami Prabhupada, I faced intimidation and harassment from Islamic extremists. I also received threatening letters threw at the house to intimidate me.

    Initially, I did not take it seriously but when they started threatening my family members and I started worrying. We lodged a General Diary for the threat. Since mid or early this year, Hindus, particularly ISKCON members faced targeted attacks which caused me mental stress. The incidents of targeted attacks by the ISIS and the attack on ISKCON temple in Sylhet caused me further mental stress. Despite that I continued to involve because I believe that Krishna would save me and my family.

    When my [family members] in Australia invited me to come to Australia, I decided to come to Australia for a visit. During my stay, on 04 December 2016, we heard that there were another serious of attack against Hindus and the Islamic extremists vandalized_ goddess Kali temple in MymensJDghorohi village in Netrokona district and in Pabna. As a result of the continuing attack, my wife became more stressed because if that happened to the Kali temple, what would be the circumstance of ISKCON activists because one of the aims of ISKCON is to promote, proselytize and spread Krishna Consciousness. When my wife became more stressed and worry, my [family members] advised me that we should seek immigration assistance in Australia to see whether we could legally stay in Australia. We then contacted [Agency 1] and had a consultation with [Representative A] on 06 December 2016 and during the meeting I expressed my concerns and fear. My brother acted as an interpreter. I told them I am an ISKCON life member and involved in public chanting and reciting Maha mantra and encourage people to join and accept the path of Krishna.

    My advisor said he would do some country research and would get back to me about my case. He then booked another appointment on 12 December 2016 and advised that if I am an active member of the ISKCON and BHBCUC and involved in public chanting and reciting and encourage people to follow the path of Krishna, he said according to country information, those people would face cruel, inhuman, degrading and would face severe ill treatment and discrimination and possibly would be killed. He then explained about protection visa and the meaning of Refugee and Complementary Protection and advised that if we fear that we would face serious harm, we could seek protection in Australia. Again, my brother acted as an interpreter. We then instructed him to lodge a protection visa application.

    I fear if I or my family returned to Bangladesh, we would face serious harm for the following reasons:

    a.I am Hindu.

    b.I am an active follower of ISKCON and follow the path of Lord Krishna.

    c.I believe that Bhagavad Gita is the way of life which promotes the path of good life.

    d.I believe that Bhagavad Gita is the divine book and spread the idea that it is divine teaching by the God.

    e.I promote, prostyles and promote the ISKCON religious principles and the path of ISKON and Krishna consciousness.

    f.I involve with poverty stricken people and people live in slum and explain and promote Bhagavad Gita and ISKCON and encourage people to join ISKCON.

    g.I used to involve in public chanting of Maha Mantra and reciting the mantra.

    h.I involved with BHBCUC and spread the news about inhuman activities of against religious minorities by the Islamic extremists.

    I fear due to my above activities, particularly my involvement in public chanting and promoting ISKCON I would be easily identified and targeted, tortured and killed by the Islamic extremists. I understand that. ISIS has now established their presence in Bangladesh and targeting people who promote other religions. I also heard that they attacked Shia community as well. If the situation is worsening even targeting Shias, it would be very difficult for other minorities religious group. In particular, people who promote and prostyles religion are the more vulnerable people who face immediate target from the Islamic extremists.

    I fear I can not protection from the authorities because the authorities are busy due to worsening political violence, increase in extortion and crime rates. In that situation, I fear I would not get adequate protection in Bangladesh. In addition, I have a genuine fear the authorities have links with the extremists and there are evidence to suggest that the Awami League members were responsible for the attacks against religious minorities. In addition, the political leaders would not take reasonable measures to control religiously motivated violence because they do not want to lose their vote bank of Muslim. In such a situation, it is unreasonable for me to get protection from the authorities.

    I fear even if I move to other parts of Bangladesh would continue to face harm because my involvement and promoting and spreading Krishna consciousness will continue and also my activities of promoting the rights of the minorities will continue.

    In addition, I would face practical difficulties relocating to other parts of Bangladesh due to following reasons:

    a.My wife is facing mental health issues.

    b.I have a small family.

    c.My name would easily identify me as a minority religious group member,

    Accordingly, I seek protection in Australia.

1. The applicant provided an additional Statutory Declaration to the Tribunal which read as follows  (not corrected for spelling or grammar):

   1.        I provided following statement in support of my protection visa review application.

   2.       In my case the Department of Home Affairs has accepted that I am practising Hare Krishna and am actively practicing my faith in Australia. The Department has also accepted that I faced intimidation and harassment due to my religious faith. It also has accepted my membership with ISKCON and BUBCUC.

   3.       On the basis I respectfully submit that credibility is not an issue in my case. In relation to the profile related to ISKCON I respectfully submit that I am actively practicing the principles of ISKCON and the path of our A. C. Bhaktivedanta Swami Prabhupada.

   4.       It should be noted that one of the sects within Hinduism which is actively engaged in proselyting and encourage people to convert to follow Hare Krishna movement is the ISKCON. Therefore, ISKCON followers are a separate and identifiable religious group within Hinduism who face elevated level of risk of harm, particularly in country like Bangladesh which is predominantly a Muslim country where the independence evidence indicates that there is further growing Islamic extremism and escalation of violence targeting Hindus. If there is an escalation of violence targeting Hindus in the recent times in Bangladesh, I respectfully request the Tribunal to consider what will happen to a person like me who actively involved in activities promoting ISKCON and encouraging people to join the movement because it is my view that ISKCON promotes peace and harmony. I believe that our Maha Mantra called ‘Hare Kṛṣṇa Hare Kṛṣṇa Kṛṣṇa Kṛṣṇa Hare Hare, Hare Rāma Hare Rāma Rāma Rāma Hare Hare’ influence inner peace and spirituality within human being. That is the reason people like me the Members of the ISKCON path established by our Swami Prabhupada.

   5.       The Islamic extremists in Bangladesh perceive ISKCON members and activitst encouraging people to convert or at least has a passive influence on Muslims to consider the path of ISKCON. We do not convert people by giving money or force rather we explain the principles and encourage them to practice the Maha mantra and meditation to see whether they enjoy any changes within themselves to consider following ISKCON. We also provide free publications of books published by the ISKCON including Bhagwat Gita which is a sacred book for us.

   6.       In addition, due to our activities including public chanting and selling books and explain the principles of ISKCON there is a real possibility which is not remote the Islamic extremists may perceive that our activities will amount to encourage other religious people including Muslim to consider following the path of ISKCON. Since we say that our Maha mantra is powerful and encourage people to do meditation by chanting the Maha mantra, I respectfully submit that there is a real possibility that the Muslim extremists including Jamaat, Hafazat-e-Islam Bangladesh, Taliban and ISIS will consider our activities challenge Islam and Quran and will consider that that our activities defaming Islam. On that basis, the Islamic extremist perceive that we are a threat to Islam in Bangladesh.

   7.       I further note that due to change in situation in Afghanistan where the Taliban has taken over Afghanistan, the Islamic extremists in other counties including Bangladesh are using Afghanistan as a safe haven for spread Islamic extremism. There is some country information shows that Islamic extremists in Bangladesh encouraged by the events in Afghanistan wanted to change Bangladesh like Afghanistan. There is also Independence information confirms that Bangladesh Muslim extremist elements have already started going to Afghanistan possibly to receive training and support from the Taliban to engage in terrorist activities in Bangladesh targeting people like me.

   8.       I also note that I continue to engage in activities with ISKCON in Australia and have clear and active intention to continue to engage in religious activities to promote the principles of ISKCON wherever I go or live.

   9.       I also note that I have attended the protest regarding the attacks against religious minorities in Bangladesh because I always want to be part and voice to address the issue of religious minorities.

   10.      I also note that there is evidence suggesting that Awami League members and cadres involved in the attacks against religious minorities in order to sustain their vote bank against the Bangladesh Nationalist Party and the Jamaat because both parties generally take Islam as a weapon or tool to increase their vote bank.

   11.      I respectfully request the Tribunal to consider the following when considering my case and fear of harm.

   a.       I have provided consistent evidence in relation to my fear seeking protection.

   b.       I never provided or caused to provide any misleading or bogus documents to the Department.

   c.       I clearly explained and articulated my religious belief and activities and request the Tribunal to have a humanitarian eye to protect me and my family.

   d.       There is escalation of violence of targeting Hindus in Bangladesh. if that is happening to normal Hindus, I respectfully request the Tribunal to consider what would happen to a person like me who involved and continue to involve in promoting and proselyting ISKCON. I genuinely believe that Lord Krishna has sent me to this world this time to promote Maha Mantra and I believe it is my duty to do so.

   e.       The recent events in Afghanistan has a significant impact and influence to Islamic extremists in Bangladesh.

   f.        There is further growing Islamic extremism in Bangladesh and people even perceived as doing activities which the Islamic extremists believe undermine or against Islam face heightened risk of harm. I respectfully submit that what is very important is the perception of the people who want to harm me.

   12.      I fear my wife who is a female will face revenge attacks to stop my activities and therefore I have a genuine fear that she would face sexual assault and harassment from Islamic extremists and fear that the Bangladeshi authorities will not do anything about it. I also fear that I have children who will face violence due to Islamic extremism in the recent time. I respectfully submit that moving to other areas in Bangladesh is not a reasonable option in my case due to following reasons:

   a.       I have a small family and will face practical difficulties moving to other areas of the country.

   b.       I will continue to engage in my religious activities and promoting ISKCON activities.

   c.       There is evidence to suggest Islamic extremism is growing and they have network throughout the country.

   13.Accordingly, I request the Tribunal to consider my appeal and recognise us as refugees.

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

   • A letter by [a named doctor, related to the applicant], dated 21 April 2017, stating that the applicant wife was 18 weeks pregnant and found to be ‘quite stressed, anxious and worried about her pregnancy and the outcome of the overall situation’. The letter states that the applicant wife ‘has had very bad traumatic recollections of few racial and religious incidents’ in Bangladesh, and psychological support is recommended for the applicant wife.
   • Two translated letters addressed to the applicant dated 7 July 2016 and 5 November 2016 threatening the applicant for worshipping idols. The first letter indicates that if the applicant’s conduct continues he and his family will have to pay the ultimate price. The second letter indicates that although the applicant has been previously warned this has not been listened to and indicates that the applicant and his family will not be alive.
   • A letter from the applicant dated 7 November 2016 to [Police Station 1] making reference to the two threatening letters and concern held by the applicant after the last letter was received. It was requested that police record the complaint as a General Diary.
   • Hindu marriage certificate and form issued [in] September 2016.
   • A copy of applicant’s International Society for Krishna Consciousness (ISKCON) membership card. 
   • Translated letter by ISKCON dated [in] 2016, certifying that the applicant received a life membership of ISKCON. The letter indicates that the applicant is actively involved in the organisation’s main objective, the youth in the villages and rural areas. The letter makes no reference to any difficulties suffered by the applicant as a result of his involvement in the organisation.
   • Translated letter by Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) dated [in] December 2016, certifying that the applicant is a permanent Hindu resident in Bangladesh, and has achieved a membership of Bangladesh Hindu, Buddhist, Christian Unity Council. The letter indicates that the applicant was given the responsibility as [Position 1] in 2013 through the promotion of minorities and speaking different rights and demands of minorities. The letter indicates that as a result the applicant and his family have been threatened to leave the country and subject to threats of deaths by some misguided terrorist organisation.
   • Various photos. 

3. The applicant’s migration agent provided a submission to the Department dated 17 April 2017. It provides the background to the applicant and an overview of his claims. The submission provides various website links to the recent attacks against Hindus in Bangladesh; the growth of Islamic fundamentalism in Bangladesh; and the land grabbing issue targeting Hindus in Bangladesh. The submission also extracts country information relating to the persecution against Hindus in Bangladesh.

4. The Tribunal notes the following evidence given by the applicant in the interview with the delegate that took place on 26 April 2017. The applicant indicates that his mother and [specified family members] live in Australia. [One sibling] lives in Bangladesh and [another] lives in [Country 1]. The applicant refers to having received to threatening letters on 17 July 2016 and 5 November 2016 and that the applicant reported these threats to the police. The applicant referred to receiving threatening phone calls on four or five occasions. On some occasions his wife picked up the phone and was also threatened. The applicant disconnected the phone line as a result.

5. The applicant refers to the fact that his grandfather was also Hare Krishna and that the applicant was taught in this tradition from early childhood. The applicant indicates that after his marriage and 2010 he and his wife regularly went to ISKCON two to three times a week participating in religious songs and helping the temple by cleaning and doing volunteer work, helping the religious leader. The applicant refers to it taking 4 to 5 years minimum to become a member and that the applicant became a member the end of 2015.

6. The applicant referred to the fact that Hindus are minorities and that people are always teasing them. Idol worship results in criticism and that religious leaders were also tortured. The applicant indicates that many times he faced bad language. The applicant was asked whether it was mainly verbal abusing and he said yes. The applicant indicates that there was not a problem in his [named village] located [distance range] km from Dhaka.  The applicant indicated that he would travel to his village every Friday. The applicant refers to attending a ISCKON temple in Dhaka. 

7. The applicant indicated that his role as a member of the BHBCUC was taking messages and telling seniors that problems were happening. The problems were handled by the senior secretary. It is a big organisation and if there is anything happening the message is spread all over the world. The applicant indicated that meetings that he attended would happen two to three times a month. The applicant refers to his appointment as [Position 1].

8. The applicant is asked if other than receiving threatening letters there were any other problems as a result of being a Hare Krishna. The applicant responds that no one tortured him but he received threats of death if he continued idol worship. He would be harmed by Muslims.

9. The applicant indicates that around 15 to 20 years ago there wasn’t that much of a problem but after that problems slowly started. The applicant refers to the problems every month. The applicant indicates that he has never been physically attacked. The applicant refers to some houses being fired before the election in 2014 and there being bombs on buses. These were just random attacks.

10. The applicant refers again to threatening letters and calls and that they will kill him and his family. The applicant refers to incidents occurring after he came to Australia.

11. The applicant indicates that there is no other reason that he fears returning to Bangladesh. The applicant indicates that he has no activities in politics. The applicant refers to his wife being very tense and that she is also pregnant. The applicant refers to there being no secure place.

12. The applicant’s migration agent provided a submission to the Tribunal dated 2 December 2021. It provides further country information to support the claim that there is persecution against Hindus including minorities in Bangladesh and that there is a fear of growing Islamic extremism. Submissions are made that member of ISKCON who engage in activities promoting the movement are a real risk of facing serious harm by Islamic extremists.

13. The submission makes reference to independent information as to attacks on religious minorities including Hindus in Bangladesh. This includes information from the 2021 US Department of State report on Bangladesh. Evidence is provided of increasing activity in Bangladesh by Islamic militants. It is submitted that the Islamic extremism is a real problem in Bangladesh. It is indicated that the information in the 2019 DFAT report on Bangladesh is outdated in terms of attacks on religious minorities, particularly after the Taliban captured Afghanistan. Reference is made to case law establishing legal principles in considering protection implications. It is submitted that the overall credibility of the applicant and supporting documents provided should be taken into account by the Tribunal.

14. The applicant submitted the following additional material to the Tribunal:

    ·A life membership card of the applicant for International Society for Krishna Consciousness (ISKCON) issued in Dhaka [in] 2015.

    ·A letter from [a named official] of ISKCON (Dhaka) dated [in] November 2021 confirming the applicant’s life membership of its organisation.

    ·A letter from [Lawyer A] (Dhaka), a lawyer, dated 21 November 2021 which states that the applicant filed a General Diary at [Police Station 1] seeking protection and it is the author’s opinion that the content of the General Diary was substantively lawful.

    ·A letter from [a named official] of the [Community Group 1] dated 29 November 2021 which states that since Islamisation of Bangladesh began in 1975, religious minorities has kept aggravating. The author provided three links to online news articles, one each from The Guardian, The Times of India and BBC News. However, the letter was provided to the Tribunal in a scanned version therefore the links do not work. The Tribunal attempted and managed to locate two of the article from Times of India and BBC News. The article from The Guardian could not be found. The Times of India article was entitled ‘2 killed in fresh communal violence in Bangladesh’ dated 17 October 2021, reporting an anti-Hindu protest during celebrations which occurred in ‘Cumilla’ where two Hindu men were killed and at least 150 Hindus were injured. The article said that around 90 people had been arrested and Prime Minister Sheikh Hasina promised to have the incidents thoroughly investigated and the perpetrators ‘hunted down and punished’. The BBC News article was written by Anbarasan Ethirajan, entitled ‘Bangladesh's Hindus living in fear following mob attacks’ dated 22 October. The article refers to the same incidents in ‘Comilla’ in which a 21-year-old man was beaten to death. The article also states that nearly a week after the incidents began, dozens of Hindu houses were torched in northern Bangladesh.

    ·A letter form [a named official], of [Community Group 2], dated [in] November 2021, which states that the applicant has been volunteering at ISKCON since 2017 and is a dedicated devotee of Lord Krishna.

    ·A letter from [an official] of Bangladesh Hindu Buddhist Christian Unity Council in Dhaka, dated [in] December 2016, which states that the applicant was a [Position 1] in 2013 for the Council which led to him and his family being threatened.

    ·A letter from the applicant’s friend, [Friend A], dated 1 December 2021 which states that as a member of ISKCON, the applicant had been pressured several times not to preach and threatened to be killed.

    ·A residence permit application receipt for [Friend A] issued by Police [in Country 2] showing that [Friend A] has been granted ‘subsidiary protection status.

    ·Several photos of the applicant with a note which read ‘Attending a protest for the attacks against religious minoirities [sic] in Bangladesh. Held [in] 2021 [in] Sydney’.

    ·An article entitled ‘Oppression of minorities hinders harmony in Bangladesh’ dated 5 February 2021 written by Stephen Uttom Natore for the Asian Catholic Dioceses Directory,

    ·‘2020 Report on International Religious Freedom: Bangladesh’ published on 12 May 2021 by the US Department of State,

    ·An article entitled ‘Minorities in Bangladesh Protest Against Establishment of Islam as State Religion’ dated 19 June 2021 written for Persecution International Christian Concern Organisation,

    ·A news article written by Anbarasan Ethirajan entitled ‘Bangladesh's Hindus living in fear following mob attacks’ dated 22 October for BBC News,

    ·A news article entitled ‘MRG condemns widespread attacks against Hindu minority in Bangladesh’, an article entitled ‘Bangladesh’s religious minorities are under attack’ dated 6 November 2021 written for The Economist.

    ·A news article from The Economic Times entitled ‘Dhaka witnesses lone wolf terror attack weeks after Taliban takeover’,

    ·A news article entitled ‘Taliban Victory Generates Echoes in Bangladeshi Social Media’ dated 15 September 2021,

    ·Pictures retrieved from followed by an untitled article which states that Bangladeshi authorities are concerned about the inflow of veteran extremists to Bangladesh following Taliban’s takeover of Kabul,

    ·An article entitled ‘If you like Afghanistan so much, why don’t you just move there?!!!!!’,

    ·A news article entitled ‘Bangladesh: Islamists emboldened by Taliban win in Afghanistan’ written for DW,

    ·An article entitled ‘Why did Afghan forces fail to resist the Taliban?’,

    ·An article entitled ‘Islamic State Ideology Continues to Resonate in Bangladesh’ written by Iftekharul Bashar dated 3 September 2019,

    ·An article entitled ‘How Taliban’s expansion in Afghanistan could signal rise of Bangladesh-based terror group’ written by Jayanta Roy Chowdhury dated 15 August 2021,

    ·A declaration by the applicant that the submission dated 2 December 2021 and its 56-page attachments have been read and explained to him and that it accurately and completely presents his claims,

    ·A news article entitled ‘Bangladesh: In May 2020 alone, 30 incidents were reported where Islamist mobs attacked or killed Hindus in the country’ written by Opindia Staff dated 18 June 2020,

    ·A news article entitled ‘VHP Slams Attack on Hindus in Bangladesh, Says Hasina Govt “Hand-in-Glove” With Extremists’,

    ·An article entitled ‘”Muslims attack Hindus 400 times a year”, Bangladesh rights group says’ written for Neo Politico,

    ·A news article entitled ‘Religious minorities protest against the constant attacks against them’ written by Sumon Corraya dated 11 September 2020 for PIME Asia News,

    ·A news article entitled ‘Bangladesh: ISKCON Temple & Devotees “violently Attacked” During Dussehra Celebrations’ written by Gloria Methri dated 15 October 2021 for republicworld.com.

    Independent information sourced by the Tribunal

1. The DFAT Country Information Report – Bangladesh, 22 August 2019 provides the following information on the Hindu religion in Bangladesh (underlining added):

   3.27 Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people. Religious minorities reside throughout the country in small numbers.

   3.28 The Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. The Constitution also commits the state to upholding secularism by not granting political status in favour of and religion, by prohibiting the abuse of religion for political purposes, and by prohibiting discrimination or persecution of persons protecting any religion. It provides for the right to profess, practise, or propagate all religions ‘subject to law, public order, and morality’, and states religious communities or denominations have the right to establish, maintain and manage their religious institutions. The Constitution stipulates that no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which they do not belong.

   […]

   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 19, 21-23, paras [3.27] – [3.28], [3.43] – [3.50].

   PREVALENCE OF FRAUD

   5.39 The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.

   5.40 It is common for Bangladeshis to acquire documents through an agent, or ‘middleman’. This individual will make an application for documents on behalf of the person that has requested them, a process which may be subject to fraud. It is therefore possible that the person seeking the document does not know that their documents are fraudulent. The risk involved with the use of middlemen may be unavoidable, as some sources report that it is not possible to get documents without the use of such an agent.

   5.41 Passport fraud is a particularly common type of fraud, given many Bangladeshis travel or are trafficked abroad in order to get work. DFAT is aware of Rohingya obtaining genuine Bangladeshi passports by fraudulent means, such as paying bribes. Once these passports expire they cannot be renewed, which has led to some high profile cases of stateless people abroad unable to return, or being arrested or detained by Bangladeshi authorities upon return. Some Bangladeshis reportedly try to leave on fraudulent passports via India, where the bona fides of the passport are more difficult to check. These travellers may be detected by Indian immigration at inward or outward borders. Bangladeshi immigration officers at the border may lack the skills and expertise to identify fraudulent documents on entry or exit. Attempting to obtain a genuine passport without corruption can be difficult as each step of obtaining documents may require bribes. For example, obtaining a passport might require a police certificate, which could require a bribe. A fraudulent document can be more easily detected than a fraudulently obtained genuine document.

   5.42 Fraudulent NICs are harder to produce as they contain a plastic chip with biometric information embedded. A genuine, but fraudulently obtained document may contain some correct biometric information. Authorities can also check NICs on a national database, which may provide some protection against fraud.

   5.43 Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.

   5.44 Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents, can often be difficult to verify through formal channels. This is for a variety of reasons, including expectations by some officials of facilitation payments, or genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh.[2]

   [2] DFAT, Country Information Report – Bangladesh, 22 August 2019, pp 51-52, paras [5.39] – [5.44]

2. The US Department of State Bangladesh 2020 International Religious Freedom Report provides variously as follows (headings omitted and underlining added):

   The constitution designates Islam as the state religion but upholds the principle of secularism.  It prohibits religious discrimination and provides for equality for all religions.  On March 12, a Bangladesh Speedy Trial Tribunal convicted and sentenced to death four Muslim defendants of the group Jamaatul Mujahidin Bangladesh (JMB), a violent extremist group accused in the 2016 killing of a Hindu priest.  The government continued to provide guidance to imams throughout the country on the content of their sermons in its stated effort to prevent militancy and to monitor mosques for “provocative” messaging.  Members of religious minorities, including Hindus, Buddhists, and Christians, who were sometimes also members of ethnic minorities, stated the government remained ineffective in preventing forced evictions and land seizures stemming from land disputes.  The government continued to deploy law enforcement personnel at religious sites, festivals, and events considered possible targets for violence.  In January, the Election Commission rescheduled local Dhaka elections after students and faith groups protested scheduling the elections during a Hindu festival.

   In October, media reported a crowd of several hundred persons beat to death a Muslim visiting a mosque after a rumor spread that he desecrated a Quran in Lalmonirhat District, Rangpur Division near the country’s northern border.  The man’s body was then set on fire.  In July, according to press and Sufi Muslims, a Sufi follower was stalked and killed outside a Sufi shrine in Gazipur.  In July, press reported local residents exhumed the body of an Ahmadi Muslim infant buried in an Islamic cemetery and dumped the body at the side of the road in protest of the infant’s burial, because they considered her family to be “infidels”; the body was later buried in a government cemetery.  According to leaders in the Hindu community and media, in November, a crowd of several hundred looted, vandalized, and set on fire Hindu family homes in Cumilla District after rumors spread that local Hindu residents supported Charlie Hebdo’s publication in France of caricatures of the Prophet Mohammed, initially published in 2015 and reprinted in September.  The Christian Welfare Trust and other human rights nongovernmental organizations (NGOs) continued to report harassment, communal threats of physical violence, and social isolation for Christians who converted to Christianity from Hinduism and Islam.  The Bangladesh Hindu Buddhist Christian Unity Council (BHBCUC) said communal violence against minorities continued throughout the year, including during the COVID-19 pandemic.[3]
   …

   [3] US Department of State Bangladesh 2020 International Religious Freedom Report, pp. 1-2.

   According to the constitution, “The state religion of the Republic is Islam, but the State shall ensure equal status and equal rights in the practice of the Hindu, Buddhist, Christian, and other religions.”  The constitution also stipulates the state should not grant political status in favor of any religion.  It provides for the right to profess, practice, or propagate all religions “subject to law, public order, and morality,” and states religious communities or denominations have the right to establish, maintain, and manage their religious institutions.  The constitution states no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which he or she does not belong.

   Under the penal code, statements or acts made with a “deliberate and malicious” intent to insult religious sentiments are subject to fines or up to two years in prison.  Although the code does not further define this prohibited intent, the courts have interpreted it to include insulting the Prophet Muhammad.  The criminal code allows the government to confiscate all copies of any newspaper, magazine, or other publication containing language that “creates enmity and hatred among the citizens or denigrates religious beliefs.”  The law applies similar restrictions to online publications.  While there is no specific blasphemy law, authorities use the penal code, as well as a section of the Information and Communication Technology Act and the Digital Security Act, to charge individuals for acts perceived to be a slight against Islam.  The Information and Communication Act criminalizes several forms of online expression, including “obscene material,” “expression(s) likely to cause deterioration of law and order,” and “statements hurting religious sentiments.”  The Digital Security Act likewise criminalizes publication or broadcast of “any information that hurts religious values or sentiments,” by denying bail and increasing penalties of up to 10 years in prison.

   The constitution prohibits freedom of association if an association is formed for the purpose of “destroying religious harmony”, the peaceful coexistence of religious communities, or creating discrimination on religious grounds.[4]
   …

   The Restoration of Vested Property Act allows the government to return property confiscated from individuals, mostly Hindus, whom it formerly declared enemies of the state.  In the past, authorities used the act to seize property abandoned by minority religious groups, especially Hindus, who fled the country, particularly following the Indo-Pakistani War of 1965.[5]
   …

   On March 12, according to media reports, a Bangladeshi Speedy Trial Tribunal convicted and sentenced to death four Muslim members of JMB, a violent extremist group, for their involvement in the 2016 killing of a Hindu priest.  The victim, Jogeshwar Roy, chief priest at Sri Swanta Gouria Monastery, was stabbed to death while organizing prayers at the temple.[6]
   …

   According to the BHBCUC, communal attacks against ethnic and religious minorities occurred throughout the year, including during the COVID-19 pandemic.  The BHBCUC counted 17 deaths in religious and ethnic minority communities between March and September.  In June, the Bangladesh chapter of the World Hindu Federation released a press statement detailing a series of 30 incidents against Hindus in May.  These included as many as four incidents in which Hindus were killed, according to the federation.  The report also noted incidents of temple vandalism, forced conversion, rapes, and abductions of Hindu girls and women.  In November, protesters demonstrated in Dhaka, Chattogram, and other parts of the country against communal attacks on minority religious communities.  Saying government actions were not enough, protesters demanded tough action and accountability for perpetrators who they stated were harming religious harmony in the country.

   In November, according to Hindu activist groups and widely reported in media, a Muslim crowd burned, looted, and vandalized Hindu family homes in Cumilla District, Chattogram Division.  Local press outlets reported the crowd was incited by rumors that local Hindu residents supported the publication in the French magazine Charlie Hebdo of caricatures of the Prophet Muhammed, initially published in 2015 and reprinted in France in September.  In remarks to the press, Home Minister Asaduzzaman Khan promised “stern, punitive actions” against the culprits and increased police presence in the affected village following the attack.  By the end of the year, police arrested 16 suspects in connection with the violence.[7]

   [4] US Department of State Bangladesh 2020 International Religious Freedom Report, pp. 3-4.

   [5] US Department of State Bangladesh 2020 International Religious Freedom Report, p. 6.

   [6] US Department of State Bangladesh 2020 International Religious Freedom Report, p. 6.

   [7] US Department of State Bangladesh 2020 International Religious Freedom Report, p. 11.

1. Statistics on violence against religious minorities compiled by a Bangladesh legal aid and human rights organisation Ain o Salish Kendra (ASK) from January to October 2021 show in Bangladesh that in that time period, there were 183 Hindu houses attacked; 176 Hindu temples, monasteries and statues attacked; 256 Hindus injured; and 9 Hindus dead. Statistically, violence against Hindus made up the vast majority of violence against religious minorities from January to October 2021.[8]

   [8] Ain o Salish Kendra (ASK) 2021, Violence Against Religious Minorities (Jan-Oct 2021), 7 November 2021 < Accessed 7 December 2021.

2. In the period January to December 2020, ASK statistics reported that in Bangladesh 12 houses were attacked, 11 of which belonged to Hindus. Sixty-six Hindu temples, monasteries or statues were attacked, and 70 Hindus were injured. Violence against Hindu minority made up the vast majority of all attacks on religious minorities in 2020.[9]

   [9] Ain o Salish Kendra (ASK) 2020, Violence Against Religious Minorities (Jan-Oct 2020), 31 December 2020 < Accessed 7 December 2021.

3. The Tribunal has also sourced a report dated 1 May 2017 of the Country of Information Services Section of the Department of Home Affairs[10] 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:

   [10] '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.[11]

   [11] 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.[12] A suspect was apprehended by locals and handed over to the police, while further suspects were detained in following days.[13] Shariful Islam and Abdur Rahman, members of banned Islamic terrorist organisation Jamaat-ul-Mujahideen Bangladesh (JMB), later confessed to the attack.[14]

   [12] 2 hurt in Dinajpur temple gun attack, The Daily Star, 11 December 2015, CXBD6A0DE17978

   [13] 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

   [14] 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.[15]

   [15] 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.[16]

   [16] 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[17] 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.[18]

   [17] 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.

   [18] 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.[19] 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).

   [19] 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’.[20] The report said:

   [20] 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.[21]

   [21] 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’.[22] The report said:

   [22] 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.[23]

   [23] 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.[24]

   [24] 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.[25] 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’.[26] The DFAT report said that ‘Islamic militants have periodically attacked members of the Hindu community and Hindu religious sites’.[27] The report said:

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

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

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

   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.[28]

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

   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,[29] and as a result, ISKCON members may be perceived as Hindus by other individuals or groups, including Islamists in Bangladesh.

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

   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].[30]

   [30] 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

   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’.[31]

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

   Buddhists

   Bangladesh’s approximately one million strong Buddhist community has also been subjected to infrequent acts of violence. According to the DFAT report, on 30 September 2015 BNP and JI members burned several Buddhist temples and about 50 Buddhist houses in Cox’s Bazar during broader protests. ISIL also claimed responsibility for the murder of a Buddhist monk in the Chittagong Hill Tracts on 14 May 2016.[32]

   [32] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.12

   Christians

   Bangladesh’s Christian community has also been subjected to increased sectarian violence related to the rise in Islamist militancy.[33] Militants shot and seriously injured an Italian priest in Dinajpur, northern Bangladesh, on 18 November 2015; sent death threats to two dozen Christian priests in November and December 2015; and killed Christian converts in Jhenaidah, west of Dhaka, and Kurigram, northern Bangladesh, on 6 January and 22 March 2016 respectively. DFAT reported that:

   [33] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.12

   ISIL has claimed responsibility for the first two attacks, and also claimed responsibility for the murder of a Christian shopkeeper in Bonpara, northwest Bangladesh, on 5 June 2016. Police were dispatched to protect churches and clergy in response to the militant death threats.[34]

   [34] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.12

   Other acts of discrimination against religious minorities and the role of Bangladesh authorities

   While, according to the information found, acts of violence against religious minorities in Bangladesh are overwhelmingly committed by Islamist groups, the US Department of State’s 2015 Bangladesh religious freedom report said that religious minorities have also reported discrimination at the hands of the country’s authorities.[35] However, again, no information was found directly relating to ISKCON members or to their perceived or actual targeting by the Awami League.

   [35] 2015 Report on International Religious Freedom – Bangladesh, US Department of State, 10 August 2016, OGD95BE926656, p.4

   Since the 2014 elections, Bangladesh has been governed by the Awami League, led by Prime Minister Sheikh Hasina.[36] The Awami League is considered ‘broadly liberal, secular and pro-Indian’,[37] but its term in office has seen ‘a further contraction in Bangladesh’s political space, with the Government restricting the activities of opposition party members, human rights defenders and journalists in an effort to cement its control over politics. These actions have eroded the AL’s political legitimacy while also inciting a violent response’.[38]

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

   [37] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, p.13

   [38] DFAT Country Information Report Bangladesh, Department of Foreign Affairs and Trade (Australia), 5 July 2016, CIS38A80121206, pp.13-14

   According to the US Department of State, religious minorities report discrimination in areas such as education, land ownership and employment. The report said:

   Religious minorities said de facto discrimination existed in the form of matriculation exam questions that drew from the majority religion. They also said, because of a lack of minority teachers for mandatory religious education classes, minority students sometimes could not enrol in religion classes of their faith.

   … Religious minority communities (who were often also ethnic minorities), especially Hindus, reported land ownership disputes that disproportionately displaced them. Religious associations said such disputes often occurred in areas near new roads or industrial development zones, where land prices had recently increased. They also stated local police, civil authorities, and political leaders sometimes enabled property appropriation for financial gain or shielded politically influential property appropriators from prosecution.[39]

   [39] 2015 Report on International Religious Freedom – Bangladesh, US Department of State, 10 August 2016, OGD95BE926656, p.4

   However, the report said that some human rights groups attributed the lack of resolution of these disputes ‘to the ineffectiveness of the judicial and land registry systems and to the lack of political and financial clout of the targeted communities, rather than to government policy disfavouring religious or ethnic minorities’.[40]

   [40] 2015 Report on International Religious Freedom – Bangladesh, US Department of State, 10 August 2016, OGD95BE926656, p.4

   A 2016 Freedom House report said that religious minorities remain underrepresented in politics and state agencies, although the Awami League government has appointed several members of these communities to leadership positions.[41] In addition to this, the report said:

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

   Although religious minorities have the right to worship freely, they face societal discrimination as well as harassment and legal repercussions for proselytising.[42]

   State protection

   Nevertheless, a March 2016 UK Home Office report said that Bangladesh authorities ‘do not appear to engage in, or sanction a policy of persecution in regard to religious minorities, although individuals affiliated with political parties, ruling and opposition alike, sometimes instigated violence against members of religious minorities for political purposes’.[43] The report said:

   There have been instances of societal abuse, intimidation, harassment, discrimination, attacks on individuals, their shops, sites of worship and communal violence, sometimes resulting in deaths, injury, rape, forced displacement, against religious minorities, and alleged forced conversions which may amount to persecution in individual cases, but this is not at a level to pose a general risk of persecution.[44]

   In relation to the protection of religious minorities, the DFAT report said that Bangladesh police and other security forces have responded to recent militant attacks by providing additional protection to religious minorities, forming a task force to monitor terrorist activities, and arresting terrorist and militant suspects.[45] However, the report said:

   Credible sources have questioned the effectiveness of these measures, noting that most of the perpetrators remain at large and highlighting dangers associated with the Government’s continued denial of ISIL involvement.[46]

   [42] Freedom in the World 2016 – Bangladesh, Freedom House, 24 May 2016, NGE43874C302, p.4

   [43] Country Information and Guidance Bangladesh: Minority religious groups, UK Home Office, March 2016, OGD7C848D14, p.6

   [44] Country Information and Guidance Bangladesh: Minority religious groups, UK Home Office, March 2016, OGD7C848D14, p.6

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

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

   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.

1. The applicant wife also indicated in terms of the applicant suffering harm as result of religious activity that her husband had been ‘pushed’.  This is in contrast to the applicant indicating that he suffered no physical harm. The Tribunal accepts that this is not a material difference.

2. The Tribunal put the applicant in the second hearing its concern that there are various credibility concerns for the Tribunal as to claims made as to targeting in Bangladesh for religious reasons. While the Tribunal acknowledges that in addition to the threatening notes themselves there is one supporting letter probative of such claims, and the corroborative evidence of [Lawyer A]. It was put to the applicant the potential for corroborative documentation to not be truthful or genuine and the corroborative witness to have provided false information. In response, it was maintained that everything that has been provided is truthful.

3. At the end of the second hearing, the applicant’s migration agent made oral representations that credibility issues need to be considered in the context of the significant delay between the Departmental process in considering the application until it reaches the Tribunal for review. Reference is made to depression and stress creating difficulties for the applicants. Reference is made to articles that will be provided to the Tribunal making reference to issues surrounding credibility and reasons for credibility concerns unrelated to a lack of truth as to underlying claims.

4. An additional submission was provided following the second hearing focusing on consideration of credibility in refugee/protection matters making reference to judicial authority and expert opinion.

5. It is submitted that the broader issue of credibility is often central to Protection visa applications but inconsistencies of testimony by the applicant alone is not determinative of non-credibility due to various factors such as stress, shame, depression, trauma, passage of time and memory failure. The applicant argues that there is a presumption of the applicant telling the truth when the testimony is sworn, citing an Canadian authority in Thind v Canada (Minister of Employment & Immigration) (citation omitted), and the applicant’s claims should be given the presumption of truthfulness.

6. The applicant also argues that credibility assessments of applicants in protection visa matters must be done with caution owing to cross-cultures and experience. The applicant submits to, or rather warns, the Tribunal not to fall into assumption that, in general, inconsistency of evidence such as in the form of late disclosure, shall discredit the applicant. Such factors as ill-preparedness, reticence in the presence of the authority, nervousness or anxiety should be taken into account in assessing credibility.

7. The applicant submits that in general, applications for refugee status are faced with the difficulty of supporting their claims with evidence and in cases in which appearance of credibility is present, the applicants should be given the benefit of the doubt. The applicant further submits that unless the Tribunal is able to make an adverse finding with sufficient confidence, the claim shall be seen as ‘possibly be true’ (MIMA v Rajalingam (1999) 93 FCR 220). In short, the applicant asks to be given the benefit of the doubt once his general credibility has been accepted.

8. The Tribunal considers the various credibility concerns identified cumulatively. The Tribunal accepts judicial and expert authority as to the caution that needs to be considered in considering credibility issues and the need to be cautious of adverse findings based on minor inconsistencies. A number of the credibility concerns as identified would not of themselves result in adverse credibility findings. However, there are a number of credibility concerns, including on significant matters such as lack of corroboration of the applicant’s claims.

9. Considered cumulatively, the credibility concerns are significantly adverse to claims that the applicants have been subject to genuine threatening notes or phone calls concerning religious activities or making a genuine complaint to the police.

10. The Tribunal does not accept that the threatening phone calls occurred or that the threatening notes are genuine. While the Tribunal accepts that there is evidence of a complaint to the police, the Tribunal considers that this is not based on true concerns but to facilitate the current claim for protection.

11. The Tribunal does accept that the applicant faced verbal adverse comments when going about his religious activities, including promoting conversion to Hare Krishna. This is not inconsistent with the diverse religious environment in Bangladesh and the tension that can exist. However, the Tribunal does not accept that the applicant has been particularly singled out for attack based on the level and degree of his religious activity.

12. In making these findings, the Tribunal is taken into account the probative evidence of [Lawyer A] and the 2016 letter from the Bangladesh Hindu Buddhist Christian Unity Council which indicates that the applicant and his family have been threatened to leave the country and subject to threats of death by some exploded terrorist organisation. The Tribunal also has taken into account the report has been made to the police. However, this evidence is given limited weight in the context of the credibility concerns identified. This evidence does not overcome the credibility concerns.

13. The Tribunal does not accept that the applicant has in the past been singled out for retribution and attack as a result of his religious activities. The Tribunal is not satisfied that there are groups or individuals in Bangladesh who have had or continue to have a concerted desire to inflict serious or significant harm on the applicant based on his religious activity.

14. As indicated in the Tribunal is satisfied that the applicant has been an active Hare Krishna follower in Bangladesh and Australia and member of ISKCON as well as in Bangladesh being involved in a multifaith religious group and undertaking conversion and advocacy for minorities, including with the BHBCUC.  The Tribunal accepts that the applicant as engaged in protests in favour of religious minorities. The Tribunal accepts that there have been verbal altercations that the applicant has suffered as part of his religious advocacy, but the Tribunal considers that these have not been coordinated demonstrating a concerted targeting of the applicant.

15. Although the Tribunal has not accepted that the applicant has been specifically targeted for attack, it is additionally claimed that the applicant as a product of his significant religious activity faces a requisite risk of harm in the foreseeable future on return (even if there had not been specific targeting).

16. The Tribunal accepts including from evidence provided on behalf of the applicant of attacks on religious minorities in Bangladesh, and increasing Islamic extremism. The Tribunal is prepared to accept that the Awami League may at times have involvement in attacks on religious minorities. The Tribunal is prepared to accept that the events in Afghanistan as exacerbated religious tensions in Bangladesh. The Tribunal is prepared to accept claims that upon the arrival of the applicants in Australia there was an attack on a Kali temple in Bangladesh the disturbed the applicants.

100.   In terms of harm in Bangladesh to Hindus, in the hearing the Tribunal noted the ASK, a Bangladesh human rights group, which compiles statistics on harm suffered by Hindus in Bangladesh under various categories. Those statistics for 2020 and 2021 up until October are extracted earlier in this decision.

101.   The Tribunal noted in the hearing that those statistics indicate greater instances of harm suffered by Hindus in 2021 than 2020 that could confirm that arising Islamic extremism had resulted in increased attacks recently. However, the Tribunal noted that if each instance of an attack on the house or religious Monastery or temple together with instances of injuries or deaths suffered by Hindus and that total figure were multiplied by 10 to account for underreporting then considering the there is a population of approximately 13.5 million Hindus in Bangladesh the resulting risk of harm of an attack on a home, temple or the like or injury or death would equate to less than 1/10 of 1 percent.

102.   In that context, the Tribunal indicated that it would not be inclined to accept that there was a real chance of serious or significant harm to the applicant on the basis of being a Hindu or belonging to a Hindu group, without any other characteristic or profile to lead to a greater risk of harm.

103.   In response the applicant referred to specific religious and Hindu attacks. The Tribunal accepts not insignificant attacks occur, but does not change the probability of attack or harm in the context of the size of the Hindu population.

104. The Tribunal is conscious of the dangers of the ‘safety in numbers argument’. In this respect it notes the decision in SZSSM v Minister for Immigration and Anor [2013] FCCA 1489 (11 November 2013) in which the Driver J cautioned that the assessment of risk may be real notwithstanding a low probability of harm facing any individual. MZAKC v Minister for Immigration and Anor [2016] FCCA 834 (14 April 2016) suggests that a statistical analysis is not impermissible provided that the applicant’s particular circumstances were also properly considered.

105.   It is submitted that Hari Krishna followers and ISKCON members are more at risk than ordinary Hindus because there religious practice is so much more devoted to conversion. It is also indicated that the applicant’s risk is higher because of the level of his religious involvement and activity.

106.   It was noted in the first hearing there has only been very limited independent information provided by the applicant of reports of attacks and harm to Hare Krishna’s/ISKON temples or members as compared to attacks on Hindus generally. Further, neither the 2019 DFAT report or the most recent US Department of State Bangladesh 2020 International Religious Freedom Report makes any particular claim of harm suffered by Hare Krishna followers and/or ISKCON members. No independent evidence has been provided from authoritative human rights bodies governments indicating that such religious practitioners are particularly at risk above and beyond other religious minorities including Hindus generally.

107.   In response including by the applicant’s migration agent it was submitted that there is an increased risk because the proselytising component of Hare Krishna activity makes them more readily identifiable to extremist Muslims. It is indicated that the DFAT report is outdated and the situation has escalated significantly only very recently in Bangladesh in terms of religious tensions towards minorities and increasing Islamic militancy, compounded by the Taliban takeover in Afghanistan. It is submitted that the 2020 US State Department Report does not reflect the current situation of increased religious tension and harm in Bangladesh.

108.   In the written response provided following the second hearing it is indicated:

I note that I am a refugee applicant with two minor children and I engage in public chanting and preaching and I am not an ordinary Hindu person rather a Hindu who is a follower of ISKCON engage in activities promoting the principles and path of ISKCON. It should be noted that not all the Hindus are ISKCON followers and not all the ISKCON followers are ISKCON members and not all the ISKCON members are engaged in preaching and promoting the Maha Mantra and Kirshna Consciousness. There is a small but an identifiable group of ISKCON members engage in preaching activities who are vulnerable for targeted attacks and harm. I belong to this identifiable group which the Islamic extremists consider as enemy to them due to our preaching and inviting other religious people into Krishna Consciousness which is one of the main activities of the ISKCON.

109.   The Tribunal accepts a greater degree of involvement in religion beyond being an ordinary Hindu, as a result of his involvement with Hare Krishna, ISKON and BHBCUC with its focus on religious advocacy and conversion. However, for the reasons indicated the Tribunal does not accept that there has been a past targeting of the applicant for harm.

110.   In terms of a statistical analysis the Tribunal has already multiplied the statistical instances of harm collected by a Bangladesh human rights group by a factor of 10. Even if this again was to be increased again by a multiple of 10 to account for the applicant’s particular level of religious activity, the increased risk it is claimed to Hare Krishna followers because of their conversion activities, his involvement with ISKON and BHBCUC, and an increase of religious extremism in Bangladesh, that still leads to a statistical risk of harm based on religious activity of less than one percent.

111.   The Tribunal accepts that if the applicant returns to Bangladesh he will continue to engage in significant religious activity, as before. Including given the Tribunal’s view that the applicants have not been specifically targeted for attack in the past nor suffered serious or significant harm for recent of his religious activity, the Tribunal is not satisfied that the applicants would face a real chance of serious or significant harm in the foreseeable future based upon continued religious activity.

112.   It is claimed that there exists the requisite risk to the applicant wife based on her facing sexual violence in Bangladesh. It is claimed that the child applicant’s face physical harm. It is claimed that the fact that the applicant’s will return to Bangladesh as a small family creates a risk. The Tribunal put to the applicant in the hearing the if they returned Bangladesh the family would do so as a unit, and the applicant would be present as the protector. The Tribunal in that scenario would not accept that the situation in Bangladesh was so dire that there would be a real chance of the applicant wife facing sexual violence or the children physical violence with the applicant as husband and father. In response, the applicant maintained the problematic situation in Bangladesh and the danger in these respects that would exist.

113.   The Tribunal is not satisfied on the evidence that there is a real chance of the applicant wife facing sexual violence or the applicant children facing physical violence on return to Bangladesh. The Tribunal does not accept a risk of requisite harm to the applicant’s based on returning to Bangladesh in the small family unit.

114.   For the same reason as the Tribunal finds that the applicant does not face a real chance of serious or significant harm based on continued religious activity, the Tribunal finds that there is no real chance of requisite harm to any of the other applicants as a result of continued religious activity.

115.   The Tribunal considers the risk to the applicants cumulatively based on the applicant and/or the other applicants being Hindu, Hare Krishna, chanting and religious practice at home and in temples and public places, promoting their religion, engaging in protests in support of religious minorities, involvement in ISKON, BHBCUC, and returning to Bangladesh as a small family unit.  The Tribunal does not accept that those matters cumulatively lead to a real chance of any applicant facing requisite harm for the reasons claimed.

116.   Given these findings, the Tribunal is not satisfied that the applicants face a real chance of serious or significant harm for any of the reasons claimed.

117.   In summary, the Tribunal is not satisfied the applicants have a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, that there is a real risk of the applicant’s facing significant harm.

118.   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

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

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.

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