1712162 (Refugee)

[2021] AATA 778

1712162 (Refugee) [2021] AATA 778 (25 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712162

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Tania Flood

DATE:25 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 February 2021 at 2:53pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – particular social group – twice divorced women – women in an extramarital de facto relationship – mothers with children born out of wedlock – physical beatings and verbal abuse – child with multiple medical conditions – applicant’s physical and mental health – country information – gender-based violence – legal, religious, societal and family attitudes – internal relocation – extrajudicial punishments – social stigma and ostracism – state protection – decision under review remitted

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 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 27 November 2015. The delegate refused to grant the visas as the delegate was not satisfied that there is a real chance or a real risk that the applicants will suffer serious or significant harm on return to Bangladesh for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether there is a real chance the applicants will suffer serious harm in they return to Bangladesh for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Bangladesh there is a real risk that they will suffer significant harm.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

11. According to information contained in her application for a protection visa, the first named applicant (the applicant) is a [age]-year-old citizen of Bangladesh. She was born in Dhaka and resided at a single address in ‘[Location]’, Bangladesh. Her parents, brother, and sister reside in Bangladesh. Her partner resides in Australia. 

12. The second and third named applicants are the children of the review applicant, who were born in Australia in [year] and [year]. The third named applicant was later added to the protection visa application. They are relying on their membership of the same family unit as the first named applicant and have not raised their own protection claims.

13. The applicant first arrived in Australia [in] October 2007 as the holder of a [Student visa]. She returned to Bangladesh [in] June 2008. While offshore, she was granted another [Student visa] as a dependent on her then husband’s visa. She last arrived in Australia [in] August 2009. She lodged the application for protection on 27 November 2015. On 8 June 2017, a delegate of the Minister refused the protection visa application.

14. In a statement attached to the protection visa application forms, the applicant made the following claims:

15. Her family arranged her marriage to her first husband, [Mr A]. She and her first husband came from different hometowns and had cultural and language barriers. They came to Australia together to study and lived in shared accommodation with other Bangladeshi people. She formed a close relationship with a Bangladeshi man named [Mr B]. At the same time, her relationship with her first husband broke down. She claims that her family were very angry with her and both their families tried to ‘patch up’ the relationship.

16. In June 2008 she returned to Bangladesh. She claims that her family were upset with her and tried to convince her to stay with [Mr A]. However, she threatened to commit suicide if forced to stay with him. She divorced [Mr A] and married [Mr B].

17. She claims that [Mr B] brought her to Australia [in] August 2009. Around 2010 they faced problems with their relationship, after [Mr B] started drinking, gambling, losing his jobs, and failing to attend his classes. She claims that he hit her almost every day. She could not tell her parents, as her father died from a heart attack after she left for Australia, and she was afraid her mother would blame her for everything that happened.

18. She claims that [Mr B]’s student visa was cancelled for non-attendance and he ended up leaving her. At that time, she received support from her friend, [Mr C]. She formed a romantic relationship with [Mr C] and they had a baby together. She claims her family do not want to see her again because she ‘ruined their social status’ and their name. She has not contacted them as they had changed their phone numbers. [Mr C]’s family also stopped contacting him because of his relationship with a woman who had been married twice. She claims that this goes against the ‘social and Islamic way’.

19. She claims that she is not very educated and not in a good physical condition. If she returns to Bangladesh, no one would accept her, and she and her baby will have to live on the streets. She also fears that she will face sexual harassment and will be sold for prostitution. 

    Documents submitted to the Department

20. The applicant’s migration agent made a submission to the Department, providing country information on the situation of single mothers, divorced women, and women in de facto relationships in Bangladesh.

21. It was submitted that de facto relationships are considered socially unacceptable in Bangladesh, with unmarried couples facing ‘immense familial pressure to marry’, social ostracism and physical abuse. In addition, children born to unmarried women are regarded as ‘illegitimate’ and face social and familial rejection. Without family support, an unmarried woman and her children would be forced to live on the streets and consequently subjected to physical and sexual violence. It was further submitted that divorced women also face discrimination, harassment and exclusion.

22. The submission also states that since 1991, Salish (village arbitration) and fatwa (religious edict) are common in Bangladeshi society, especially in rural areas. It was submitted that Salish and Fatwa are often ‘used as tools of subjection of women’ in accordance with sharia law and with a view to preserving the Islamic faith. The submission states that village arbitration meetings have been held to condemn women for ‘perceived moral transgressions’, for example, for cohabiting or for entering into marriages which are deemed invalid under Islamic law.  

23. The following documents were also submitted to the Department:

24. A research response published by the Immigration and Refugee Board of Canada on 5 August 2003 on the treatment and protection available to ‘common-law’ couples in Dhaka.

25. A research response published by the Refuge Review Tribunal on 12 February 2008 on the subject of de facto relationships and mixed marriages in Bangladesh.

26. Copy of an online news articles published on 24 November 2015 by IRIN Asia titled ‘Bangladesh: killing women in the name of religion’.

27. Copy of an academic article titled ‘In Search of Equality: Marriage Related Laws for Muslim Women in Bangladesh’ published in the Journal of International Women’s Studies in November 2003.

28. Copy of an academic article titled ‘The Social Sanction of Divorce: Who Ultimately Pay the Social Costs of Its Adverse Effects?’ published in ‘Sociology and Anthropology’ in 2013.

    Protection visa interview

29. The applicant did not attend an interview with the Department due to on-going medical conditions associated with her pregnancy in 2016.  

30. As the applicant was not able to attend an interview, she was issued with a natural justice letter by the Department on 22 November 2016.The letter invited the applicant to comment on information in relation to incongruities in her protection claims and information before the Department from her previous student visa applications.

31. On 16 January 2017, the applicant responded to the letter, providing the following information:

32. The Department’s letter stated that information provided in the applicant’s student visa application in 2008 indicates that she was financially sponsored by her parents, and that this is inconsistent with her claim that her family did not support her separation to [Mr A]. In response, the applicant stated that whilst her family were against her separation, they provided financial support as they always wanted her to complete higher studies.

33. The Department’s letter stated that in her student visa application as a dependent on [Mr B], the applicant provided wedding photos featuring their families, which is inconsistent with her claim that her family did not support her second marriage to [Mr B]. In response, the applicant stated that even though her family did not support her marriage, they ‘maintain[ed] formality]’ to ‘get rid’ of her, as it is ‘very shameful’ that a daughter would enter into a marriage by herself.

34. In response to the delegate’s concerns that it appears incongruous that the applicant’s family would disown her because of her third marriage when they agreed to her second marriage and participated in a public wedding celebration, the applicant stated that after her second marriage, her family stopped contacting her. She stated that as she had married [Mr B] without their agreement, so they ‘had to agree’ with her third relationship.

35. In response to the delegate’s concerns that it appears incongruous that the applicant claims that no one would support her in Bangladesh when she has a spouse and two children and could return as a family unit, the applicant stated that no one would accept her and the children. She stated that in Muslim culture, a woman having three relationships is seen as ‘very shameful’. She claims that her whole family might be killed and that the government will not do anything.

36. In response to the delegate’s concerns that her claim to fear harassment and prostitution, are exaggerated and unsupported, the applicant stated that women are harassed and killed in daylight without reason. She claims that no one comes to help them and the government does not take any responsibility.

37. The Department’s letter stated that the applicant’s multiple marriages in a short period of time and during key stages in her visa history, may suggest that she has been using her marriages as avenues to prolong her stay in Australia. In response, the applicant stated that she feels ‘guilty’ and ‘bad’ about her three marriages. However, she claims that because of her situation she had no choice and could not ask anyone for help. She stated ‘that time whatever I think I just did’.

38. The applicant’s representative made a submission to the Department dated 12 January 2017 in relation to the Department’s observation that there is no evidence that the applicant will be sexually harassed and sold into prostitution. He stated that it would seem extremely unlikely that any applicant would be able to provide such evidence.

    Documents submitted to the Tribunal

39. On 10 September 2019, the applicant’s representative submitted the following documents to the Tribunal in support of the review application:

    ·A report by Senior Clinical Psychologist, [Ms D], dated 9 May 2018, in relation to the second named applicant. The report states that the second named applicant was born prematurely and was diagnosed with severe Autism Spectrum Disorder (ASD) In 2016. The report indicates that he is the recipient of NDIS funding and receives regular speech therapy and occupational therapy. [Ms D] stated that the second named applicant needs routine to cope well in his life and is showing poor emotional self-regulation.

    ·A report by [Dr E], dated 26 May 2016. The report outlines observations made by [Dr E] in relation to the second named applicant’s behaviour, communication, gross motor skills, and interactive play. The report states that the second named applicant fulfils the criteria for Autism Spectrum Disorder according to DSM 5 and refers him to an early intervention centre.

    ·A document titled ‘1 Year Follow Up Report’ by neonatologist, [Ms F], dated 26 June 2015. The report indicates that the second named applicant underwent developmental and medical assessments, which indicates that his development is ‘appropriate for his age’.

    ·A ‘Five Year Developmental Assessment Report’ by paediatrician [Dr G] and Senior Clinical Psychologist, [Ms D], dated 5 June 2019.  The report indicates that the second named applicant was assessed to ascertain his current cognitive level for appropriate school placement. The report states that his overall intellectual ability was in the ‘extremely low range’ and recommends that he be placed in a small specialist unit or class for children with ASD and intellectual impairments.

    ·A letter by [Dr G] dated 10 June 2019 stating that the second named applicant has substantial problems including an intellectual impairment and Autism Spectrum Disorder which requires significant support both at home and at school. [Dr G] stated that without this support, ‘his final potential as an adult would be severely affected’.

    ·A medical certificate by [Dr H] dated 4 June 2019. [Dr H] stated that she has been treating the first named applicant for approximately 10 years and that her anxiety would ‘increase exponentially’ if she is returned to Bangladesh, as she would not be able to provide for the second named applicant with the ‘amazing support and dedication’ she has provided over the past few years. [Dr H] further stated that the first named applicant fears that if they are returned to Bangladesh, her son will be discriminated against and will not get proper care, to the standard he has received in Australia.

    ·A [Service provider 1] report by counsellor [Ms I], dated 31 October 2017. The report indicates that the applicant has attended five one-hour counselling sessions since 8 August 2017 and consistently reports a range of symptoms associated with posttraumatic stress disorder (PTSD), depression and anxiety. The report states that the applicant continues to be fearful of police and suffers PTSD symptoms from ‘being held in Australian immigration detention for three and a half weeks when her son was [young age], seeing footage of floods in Bangladesh which cause intrusive images of her children being in the floodwaters, and the uncertainty of her legal status and future in Australia’. [Ms I] was the opinion that the applicant’s presentation is consistent with her account of past traumatic events.

40. On 13 December 2019, the Tribunal received a ‘NDIS Progress Report’ in relation to the second named applicant, dated 21 November 2019. The report indicates that the second named applicant has been receiving therapy from [Service provider 2] since September 2016 and attended a total of 36 speech pathology sessions and 28 occupational therapy sessions.

41. On 17 April 2020, the Tribunal received a [Service provider 1] report by clinical psychologist [Ms J], which indicates that the applicant had attended a total of 42 counselling sessions. The report states that the applicant has ‘difficulties tolerating intense emotional distress’ and ‘a history of suicidal ideation’. The report outlines the applicant’s background and protection claims, as self-reported by the applicant. The report states that the applicant claims to come from a ‘strict Muslim family’ who held ‘very conservative beliefs’ and that she was forced into an arranged marriage to a [age]-year-old man when she was [age] years of age. She stated that her family were ‘verbally abusive and violent’ when she divorced her first husband and eventually conceded to her remarrying but said they would not speak to her again or support her. The report states after her second husband left Australia, the applicant was unaware that this would result in her visa becoming invalid, and as a result, she was unlawful in Australia for approximately two years. During this time, she fell pregnant with her first child who was born at [number] weeks gestation. When her son was [age], she was detained and placed in [an] Immigration Detention Centre for a period of three to four months and lodged her protection visa application after her release. [Ms J] stated that she holds concerns about the applicant’s psychological health and functioning should she be forced to return to Bangladesh, due to the applicant’s vulnerability and psychological disorder including her PTSD, depression and anxiety symptoms.

1. On 1 July 2020, the Tribunal received a [Service provider 1] letter dated 6 February 2019, referring the applicant to [Dr H], for treatment of her ‘persistent symptoms of generalised anxiety’. The Tribunal also received two medical certificates by [Dr H] dated 4 July 2019 and 29 May 2020. [Dr H] essentially repeats the information provided in her letter dated 4 June 2019. However, she also states that the applicant is suffering from physical ailments such as chronic gastritis and severe tension headaches, connected to her anxiety, including ‘COVID anxiety’. In addition, the Tribunal received a medical imaging request in relation to the applicant’s ‘epigastric pain’, and a Centrelink medical certificate relating to the applicant’s Anxiety and Depression and PTSD.

2. On 22 December 2020, the applicant’s representative submitted additional medical documents in relation to the applicant’s medical conditions. These include an abdominal ultrasound request dated 24 November 2020, a pathology request form dated 15 December 2020, a medical prescription form, a Centrelink medical certificate, and a medical certificate dated 26 October 2020 outlining that the applicant is suffering from ‘acute anxiety, chronic gastritis and headache – tension’. The representative also submitted a further letter from [Dr H] dated 22 October 2020 repeating the same information provided in her previous letters.

3. On 14 January 2021, the applicant’s representative submitted an updated NDIS report for the second named applicant, dated 16 December 2020. The report outlines the second named applicant’s developmental progress at 6 years and 9 months of age. The report indicates that the second named applicant had begun receiving Positive Behaviour Support (PBS) and that he would benefit from ongoing occupational therapy and speech pathology sessions.

4. On 21 January 2021, the applicant’s representative submitted the following documents to the Tribunal:

   ·An updated [Service provider 1] report in relation to the applicant. The report states that the applicant’s psychological wellbeing has deteriorated, and that she reported that she was receiving threats from her ex-husband. The report also indicates that the applicant suffers from nightmares and paranoia that someone is after her and her children. The report further notes that the applicant presented with a high level of severe anxiety and indicated that she is ‘living in limbo’ due to her ongoing protection visa review and caring for her special needs child during the COVID-19 pandemic.

   ·A letter from [Service provider 3] dated 19 January 2021. The letter states that the applicant has been engaged with [Service provider 3] in [a] program since 26 March 2018. The letter states that the applicant receives case management support, financial support and health and medical support services from [Service provider 1].

   ·A medical certificate dated 19 January 2021 by [Dr H], indicating that the applicant is suffering from Severe Depression, Anxiety with associated panic attacks, Gastro Oesophageal Reflux Disorder, headaches, and Iron Deficiency Anaemia.

5. On 29 January 2021 the applicant’s representative submitted the following documents:

   ·A letter of support by occupational therapist, [Ms K] dated 25 January 2021. [Ms K] stated that she has known the applicants since August 2018. She stated that the first named applicant has shared details of her situation, including that ‘she arrived in Australia in 2009 following years of violent civil and political unrest in Bangladesh’ which saw ‘countless human rights abuses’. [Ms K] stated that the applicant ‘fell victim to some of these abuses and was forced to seek another country in which she hoped to live safely’. She stated that the applicant is a ‘loving, dedicated, capable mother and wife’ and that she is concerned for the safety of herself, her husband, and her children if they had to return to Bangladesh.

   ·Email correspondence between [Service provider 1] workers and the applicant’s clinical psychologist, Ms Vicki Johnson, in relation to the applicant’s referral for counselling services at [Service provider 1] in 2017.

6. On 4 February 2021, the applicant’s representative submitted two statements by the applicant, dated 2 February 2021.

7. In the first statement, the applicant stated that she does not have a good memory due to her mental and physical health conditions. She stated that she suffered from domestic violence during her marriage to [Mr B]. She lost her family, after she tried to force them to accept her marriage to [Mr B] by attempting suicide and ended up in hospital. She stated that after [Mr B] left her, she attempted suicide again in Australia, but was saved by her current partner, [Mr C]. She claims that [Mr B] called her every day threatening to kill her. He also said that if he sees the applicant and her kids anywhere in Bangladesh, he would kill her and [Mr C]. The applicant stated that [Mr B] also told her that he will be able to find her anywhere in Bangladesh and that he has some private pictures and videos of her, which he threatened to leak. She fears that he has the power to harm her family. The applicant also stated that in Bangladesh, women and young children are raped and kidnapped so it would not be possible for her family to return to Bangladesh. In addition, her son is on an NDIS plan which is only available in Australia.

8. In a second statement to the Tribunal, the applicant stated that she experienced many complications during her pregnancy with her son, who was born extremely premature. She stated that she struggled financially and emotionally while her son received treatment in hospital. After [Mr B] departed Australia, she did not realise she was unlawful until she and her son were placed in immigration detention. She was released after three to four weeks but continued to hold fears about her time in detention. Her son was then diagnosed with Autism Spectrum Disorder and received funding from NDIS for speech therapy and occupational therapy. She experienced complications again during her pregnancy with her second child. She was also diagnosed with multiple health problems including Anxiety, Depression, and PTSD. She stated that she worries about how she would survive in Bangladesh as there are ‘no facilities’ like in Australia, and she saw from the TV that lots of women are sexually harassed in Bangladesh. In addition, her physical and mental health were affected by COVID-19 and she claims she cannot go back to Bangladesh in her present condition.

9. The Tribunal also received numerous documents in relation to the applicant’s mental health conditions, including:

   ·A letter of support from family caseworker, [Ms L], who had supported the applicant since 2019. [Ms L] stated that applicant told her that it is unsafe for her to return to Bangladesh as she has ‘violated a number of social conventions’ and has been disowned by her family. She stated that the applicant experiences both physical and mental health implications as a result of her traumatic history and is ‘extremely anxious about the potential outcome of her forced return to Bangladesh’. She stated that the applicant said she will commit suicide if this occurs.

   ·Copies of emails exchanged between [Service provider 1], [Service provider 4] and [Service provider 3], dated between 19 July 2017 and 25 October 2019, in relation to the coordination of counselling and support services for the applicant.

   ·A letter from [Service provider 1] dated 20 January 2021 providing a summary of the assessments undertaken by the applicant and the counselling sessions she attended, since her referral to [Service provider 1] on 18 July 2017. 

   ·Four [Service provider 1] referral letters dated between 5 April 2018 and 26 August 2019, and nine [Service provider 1] reports dated between 7 November 2017 and 30 June 2020. All documents relate to the applicant’s counselling treatments.  

10. The applicant’s representative made a legal submission to the Tribunal dated 5 February 2021. It was submitted that the applicants meet the criteria to be granted a protection visa under s 36(2)(a) and (aa) of the Act. The submission states that the applicant has a well-founded fear of persecution under s 5J on the basis of her membership of the particular social groups of: twice divorced women, women in a de facto relationship, and mothers with children born out of wedlock. The representative stated that the applicant will be persecuted by her ex-husband, [Mr B], his family, and the Bangladesh Islamic community. The representative also stated that the applicant faces serious harm from the Islamic community in Bangladesh, including torture, kidnap, rape and murder, and cannot take reasonable steps to modify her behaviour to avoid the claimed harm. The representative also made submissions stating that all applicants meet the primary and secondary criteria applicable to the grant of a protection visa, with reference to the relevant subclauses in the Migration Regulations.

11. The representative submitted that the applicant’s family comes from a conservative Islamic background and that the applicant faces serious harm because her two divorces and de facto relationship ‘are against the accepted cultural practices in conservative Islamic community in Bangladesh’. In support of this claim, the representative referred to the 2019 DFAT Report and an article about the ‘violent actions committed against women in the name of Islam’. In the submission, the applicant’s representative also clarified that the applicant is in a de facto relationship with [Mr C], and that they are not legally or customarily married. He stated that the applicant has referred to him as her ‘husband’ as ‘culturally she considers the father of her children to be her husband’. It was submitted that if the applicant is returned to Bangladesh, she would be returning as an ‘unmarried woman in a de facto relationship’ and would be subjected to persecution from her ex-husband, his family, and the Bangladesh Islamic community.

12. The submission refers to country information published by Human Rights Watch and UN Women, on the situation of women in Bangladesh including gender-based violence perpetrated by their husbands or their husband’s family. It was submitted that the applicant’s ex-husband, [Mr B], has threatened to kill the applicant and her children upon her return to Bangladesh. The applicant was also subjected to physical beatings and verbal abuse throughout the relationship. The representative also referred to the 2019 DFAT Report on Bangladesh and stated that’ rape, sexual harassment, and physical abuse against Bangladeshi women occur frequently’ and ‘prosecution of these offences by the police and state are weak and uncommon’. The representative stated, with reference to the DFAT Report, that the applicants’ children are at ‘significant risk of kidnapping and trafficking for sexual purposes if they return to Bangladesh’.

13. In addition, it was submitted that there are ‘poor and limited health care facilities available in Bangladesh’ and that there is social stigma attached to mental illness. It was submitted that the first and second named applicants’ medical and mental health conditions require ongoing treatment, as outlined in the evidence by medical professionals, previously provided to the Tribunal.

14. The following documents were provided to the Tribunal, and referred to by the representative throughout the submission:

    ·A report by UN Women- Asia Pacific title ‘UN Women Bangladesh

    ·A report by the UK Home Office titled ‘Country Policy and Information Note Bangladesh: Medical and Healthcare Issues’ published in May 2019

    ·An article titled ‘Between Ideals and Reality: Violence against Women and the Real Image of Women in Islam’, authored by Zaleha Kamaruddin and Umar A. Oseni (undated).

    ·Copy of the DFAT Country Information Report on Bangladesh, dated 22 August 2019.

    ·An article by Human Rights Watch titled ‘I Sleep in My Own Deathbed - Violence against Women and Girls in Bangladesh: Barriers to Legal Recourse and Support’

    ·Copy of a decision made on 11 July 2011 by the United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), titled SA (Divorced woman – illegitimate child) Bangladesh CG [2011] UKUT 00254(IAC).

    Tribunal hearing

15. The applicant appeared before the Tribunal on 12 February 2021 to present arguments in support of her case.  The Tribunal discussed with the applicant her background in Bangladesh, the reasons why she fears returning to Bangladesh and her present circumstances.  The Tribunal also heard evidence from her partner.  Their testimony is summarised as follows:

16. The applicant claimed to have been born in Dhaka, Bangladesh and to never have lived anywhere else in Bangladesh. She described the area she grew up in as middle class.

17. The applicant stated that her father is deceased but that her mother, brother and sister remain living in Dhaka.  She said she last had contact with her mother in 2009 when her father was hospitalised.  She said that she tried many times thereafter to contact her family, especially around the time her second husband became violent toward her.  She said that initially they took her calls but they eventually stopped answering.  She said that once she reached her brother on the phone and he told her not to keep in touch with them any longer and they blamed her for her father’s death. 

18. The applicant claimed not to know whether her family members in Bangladesh are aware of the fact she has two children.  Similarly, she said that her partner is disconnected from his family in Bangladesh because they do not accept that he and she are living together.  She said that his family also do not know about the children.

19. The applicant declared her religion to be Islam and said that her family were very strict Muslims and conservative people.  She said that while she observes her prayers she considers herself more liberal than her family in Bangladesh.  She described her partner’s religious observance similarly.

20. The applicant testified that she and her current partner both completed high school in Bangladesh.  She said that she worked as [an Occupation 1] when she first arrived in Australia.  Her partner said that he has also worked as [an Occupation 1] and at a [workplace].

21. The applicant stated that her second husband left her in 2012.  She said that she and her ex-husband had been sharing a house with other people including her current partner.  She said that her partner witnessed the problems she had with her ex-husband and after he left he offered her help.  She said that two weeks after her husband left her she and her now partner moved to another accommodation and began living together.

22. When asked how it was possible that two practicing Muslims decided to cohabitate outside of marriage she answered that her ex-husband was threatening to kill her and she felt she had no other option but to take shelter with her now partner.  She said her priority was to secure her safety and then later she became pregnant with her first child.   She said that she and her partner now have two children together and that they would eventually like to marry.  She and the witness both testified that they became aware that it is commonplace for couples to live together in Australia without being married.

23. When asked what is preventing them from getting married she said that they had many problems to overcome and that marriage was not something they could concentrate on now.  When asked if she has secured a divorce from her ex-husband she said that she couldn’t recall if she had applied for a divorce and/or whether he had requested a divorce from her.  When questioned further about it she said she feels she is divorced from him but she does not recall signing any documents to that effect. 

24. The Tribunal put it to the applicant that the written evidence before it refers to her being twice divorced and that numerous of the medical reports she has produced state that she lives with her husband and two children.  The applicant responded she was married twice before and both marriages ended.  She said this is why she refers to herself as being divorced.  Similarly, she said she considers her partner to be her husband as they have two children already.  She said she always refers to him as her husband.

25. The Tribunal put it to the applicant that if she were to secure a divorce she could marry the father of her children and return to Bangladesh as a family unit.  She replied that she cannot return to Bangladesh because her ex-husband is threatening to kill her.  In addition, she said the children were born out of wedlock and she could not prove otherwise.  She said if people in Bangladesh become aware of this fact they could be killed.

26. The applicant testified that her children are aged [age] and [age].  She said they have different family names which she chose.  She said that is not uncommon in Bangladesh.  The Tribunal asked the applicant whether the children’s birth certificates indicate that she is married to their father.  She replied that her son’s birth certificate initially indicated they were married.  However, she said that they amended this about two years ago.  When asked why she did this she responded that it felt wrong because it was not the correct information.  She said that her conscience prompted her to make the change.

27. The Tribunal asked the applicant how she would respond to questions about her marital status in Bangladesh.  She replied that there would be no advantage to claiming they were married because they would not be able to produce a marriage certificate.   She added that they could not lie about it.

28. When asked why the applicant fears harm from her ex-husband she said that he feels she has harmed in.  She said she fears he will kill her and the children.  She added that he told her he has photographs and videos of them together and he has threatened to publish them in Bangladesh in order to humiliate her.

29. The applicant stated that she fears harm from the wider community in Bangladesh because it will become known that she has two failed marriages and two children born out of wedlock.  She said that she will be physically and mentally harmed for these reasons. The applicant stated that her own brother also informed her that if he sees her in Bangladesh he will kill her.

30. The Tribunal asked the applicant how her ex-husband or her family members would know that she has returned to Bangladesh.  The applicant did not clearly answer the question but stated that her ex-husband has threatened to tell everyone about what she has done in Australia.  The Tribunal asked the applicant how her ex-husband would know she had returned if she and her family went to live in a different part of Bangladesh.  She said that he knows her identity and could use this to find her.  She conceded she does not know how he would find her but stated that she is very fearful of him.  She later said that she heard his family is rich.  She also added that she has no money and her son and she have health problems and it would be very difficult to consider moving elsewhere in the circumstances.   She said she would also need to prove she was married in order to find accommodation and to access other services.

31. The applicant confirmed to the Tribunal that she fears no harm from her first husband.  She confirmed she divorced him in Bangladesh in the Islamic tradition.  She said she attended an office where people get married in the Islamic tradition.  When asked what was involved she gave a confused and unclear account of events.  When pushed for a clearer explanation of the process she simply said that her parents guided her through the process.

32. The Tribunal asked the applicant if she could seek a divorce from her second husband in the same way if she returns to Bangladesh.  She said that she would need support and witnesses and that she wouldn’t have anybody to help her.  When asked if she could engage a lawyer to act on her behalf she said she wouldn’t have the money to do so.

1. The applicant said that she married her second husband in Bangladesh in an Islamic wedding ceremony.  She said the marriage took place in their home as they did not want anybody else to know about it.  She said that she had to force her parents to agree to the marriage and that her husband’s family were also not eager for the marriage to go ahead because she had been previously married. 

2. The applicant said that her second husband returned to Australia after the marriage and she remained in Bangladesh for over a year.  She said she lived in her parent’s home during this period because her in-laws did not want her living with them.  She said her parents basically ignored her and wanted her to leave because they were ashamed of her.

3. The applicant stated that she separated from her ex-husband in 2012.  She said that he started drinking and taking drugs and often beat her up.  She said he continually threatened to leave her and eventually did.  She said that he continued to call her and threaten her over the telephone.  When asked why he treated her in this manner given it was him who left the marriage she said that he blamed her for the rift between him and his parents.   She said she told him she has children hoping he might leave her alone but this only made the situation worse.  She said she last heard from him several months before the COVID pandemic started.  She said he told her he was going back to Bangladesh and that he did not want to ever see her there.

4. The Tribunal put it to the applicant that she separated from her ex-husband in 2012 and it appears he could have harmed her in Australia if it truly was his intention to do so.  She said that when she and her partner moved to a new house he repeatedly called and asked for her address but she did not give it to him.  She said that he knew he could not harm her in Australia because the law is upheld here whereas in Bangladesh he could do as he wishes.  She confirmed that she has not had any contact with her ex-husband since he returned to Bangladesh.

5. When asked if she ever reported the domestic violence to the police she said she was afraid nobody would believe her.  She added that she didn’t have any documents to support what had happened.

6. The Tribunal asked the applicant what her partner will do if she and the children are required to return to Bangladesh.  She replied that he has nobody else in Australia and he would go back with them.  The applicant’s partner testified separately that he would return to Bangladesh with his family if required to do so.

7. The Tribunal asked the applicant how members of the community would know she was previously divorced and or that she was not married to her current partner.  She replied that it is impossible to hide anything in the community in Bangladesh.  She said that when she married the second time they did not tell anybody about it and yet people found out regardless.

8. The Tribunal put it to the applicant that country information indicates there are some women who manage to divorce and continue living in the community, particularly in the capital city.  She replied that these women might have an income and some support whereas she would have neither.

9. The Tribunal asked the applicant what will happen if people in the community become aware of her situation.  She replied that the people will mentally harass her and laugh at her and taunt them.  She said that this situation would be intolerable for her given her mental health and she would be forced to commit suicide.  She said she also fears she might encounter physical violence.  The Tribunal put it to the applicant that it appears from country information that this type of punishment is more likely to occur in rural areas and she replied that it happens everywhere and she has seen this sort of behaviour in Dhaka.

10. The Tribunal put it to the applicant that her claimed fears of becoming homeless or forced into prostitution or her children being kidnapped and trafficked would likely be mitigated if she returns to Bangladesh under the protection of her male partner.  She said that this wouldn’t reduce the risk.  She said that if parents are away working children can be taken and forced to work as labourers.

11. The applicant’s representative referred to the medical evidence submitted to the Tribunal and submitted that the applicant would be unable to work on a regular basis due to her own mental health problems and her need to care for her son who has a mental disability.  She also submitted that the medical evidence provided in submissions points out the challenging behaviour of her son which would likely put him at risk of social stigmatisation.

    Post-hearing submission

12. On 19 February 2021 the Tribunal received a number of additional documents including a further submission from the applicant’s representative, a statement from the applicant dated 14 February 2021, a copy of the birth certificate of [the third applicant], a letter from [Dr H] dated 19 February 2021 and an article providing an overview of divorce law in Bangladesh.

13. The applicant’s representative submitted that the applicant was suffering from a panic attack during the hearing and this made it extremely difficult for her to process and answer questions.  This view is supported by the attached letter from [Dr H] and the applicant’s statement.

14. The applicant’s representative submitted that the applicant suffers from serious mental and physical health conditions which will further worsen if she returns to Bangladesh and she will not be able to access mental health services and treatment necessary for her deteriorating condition.  It is submitted that the Tribunal is required to undertake active intellectual engagement with the medical evidence before it.

15. The applicant’s representative submits she is instructed that the applicant is not legally divorced from [Mr B].  Therefore, she has had an extramarital relationship with her current partner, [Mr C] and has had two children born out of wedlock while legally married to [Mr B].  It is submitted that the applicant fears persecution on the basis of the Islamic religion and her membership of a particular social group divorced women, women who have had extramarital relationships and the mother of children born out of wedlock.

16. The applicant’s representative submits that in order for the applicant to obtain a divorce in Bangladesh, she would need [Mr B] to sign the divorce papers and he would be aware that she has returned to Bangladesh.  It is submitted that this would require her to make contact with [Mr B] whom she fears would torture, kidnap, rape and murder her and her family as she has had an extramarital relationship with [Mr C] and had two children born out of wedlock.  Further, the Bangladeshi Islamic community will become aware that the applicant has filed for divorce through the formal divorce process required and will have the knowledge that she had engaged in an extra-marital relationship with [Mr C] and had two children out of wedlock.   

17. In her written statement the applicant states that when she separated from [Mr B] she mentally felt that she had divorced him.  That is why during counselling sessions she said that she was twice divorced.  She said that in order to divorce him now she would need to contact him and this is not possible because she is afraid of him.

    Country information – marriage, divorce, societal attitudes towards women in extra-marital relationships, children born out of wedlock and gender-based violence in Bangladesh

18. DFAT’s most recent country information report on Bangladesh (22 August 2019) reports as follows:

    While women participate in all areas of Bangladeshi society, longstanding societal, cultural and religious attitudes continue to place limits on the extent of that participation. A 2018 survey conducted by the Asia Foundation on the attitudes of Bangladeshis towards democracy found that 60 per cent thought parliament should have only or mostly male representatives (73 per cent of men and 47 per cent of women respondents). As noted in Personal Status Laws, laws relating to family (including marriage, divorce and inheritance) derive from religious tradition, which tends to disadvantage women. Religious leaders in rural areas sometimes impose flogging and other extrajudicial punishments on women accused of violating strict moral codes, but do not impose these punishments on men.

    Despite legal prohibitions, rape, sexual harassment and other forms of gender-based violence against women occur frequently. Human rights NGO Odhikar documented 619 rape cases from 1 January to 30 November 2018, although these figures are likely to understate actual occurrence. Rape within marriage is not a crime, and spousal rape is considered culturally acceptable.. According to the US State Department, the prosecution of rapists is weak and inconsistent, which supports a culture of impunity and encourages further criminal acts by those who escape legal consequence for their crimes. NGOs report that a high- percentage of rapes and attempted rapes involve girls aged between seven and 12 years of age, and many rape victims subsequently commit suicide.

    Women often do not report violent crimes, including rape, to police. Local sources told DFAT that attempts to report to police may not be taken seriously. Police reportedly often do not record crimes, or do so in a manner that obscures their true nature: for example, police may record rape as a ‘dowry-related matter’. Obtaining medical evidence of sexual assault is also difficult and police are likely to demand bribes for accepting reports. DFAT is aware of unverified claims that rape has been used in politically motivated violence.

    The Domestic Violence (Prevention and Protection) Act (2010) criminalises domestic violence, providing for a punishment of up to six months’ imprisonment for a first offence or two years’ imprisonment for repeated offences. The law is not effectively enforced, however, and domestic violence is widespread.

    According to a 2015 survey conducted by the Bangladesh Bureau of Statistics, almost two-thirds of ever- married women had experienced one or more forms of violence (physical, sexual, economic, emotional or controlling behaviour) by their husband at least once in their lifetime, and 54.7 per cent had experienced violence during the last 12 months. Almost three-quarters of women who had experienced partner violence had never reported their experience to others. Reasons for non-action included lack of access to social services, concern about family honour, fear of the perpetrator, and shame or embarrassment.

    NGOs report that general violence against women also occurs frequently, particularly in relation to disputes over dowries. Odhikar reported 135 cases of dowry-related violence against women from 1 January to 30 November 2018, compared with 240 cases in the same period in 2017. Acid attacks against women remain a particular problem, although the number of reported cases has reduced in recent years. Odhikar reported 26 acid attacks against women from 1 January to 30 November 2018, compared with 51 cases in the same period in 2017. Most acid attacks are reportedly related to marital, family, land, property or money disputes, or to a woman’s refusal to accept a marriage proposal.

    There is significant social stigma against single women. Most Bangladeshi women are married very young and being single by choice is virtually unheard of. Remarriage in the case of widowhood or divorce is often considered socially unacceptable.

    DFAT assesses that most Bangladeshi women and girls, regardless of their religious community or socio-economic status, face persistent societal discrimination and a high risk of gender-based violence and sexual harassment. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community. Girls face a moderate risk of being subjected to early marriage.

19. A UK Home Office Country Policy and Information Notes Bangladesh: Women fearing gender-based violence, (June 2020) reports:

    Mohammed Asaduzzaman Sayem of the UK Bangladesh Education Trust (UKBET) told the Home Office FFM delegation that it was ‘extremely rare’ for women to have children outside of marriage; the National Human Rights Commission (NHRC) stated that to have a child outside of marriage would be unacceptable to family and society; although sex before marriage was not illegal, it was particularly frowned upon for women. Spanish international news agency, EFE, reported in February 2017 on the NGO, Hope for the Destitute Women and Children (HDWC), which offered support to unwed pregnant women and girls. The report noted the ‘social stigma associated with pregnancy before marriage in deeply the conservative society [of Bangladesh].

20. An earlier UK Home Office report of a Fact-Finding Mission in Bangladesh (18 September 2017) states on the practice of forced marriages that in rural areas, and even in cases of rape, families may make the couple involved marry in order to avoid a pregnancy out of wedlock that would be perceived to bring shame on the family.  A local NGO Director also notes that births out of wedlock are uncommon. The NHRC further states that to have a child out of wedlock is socially unacceptable, though not illegal. According to the following statement by the UKHO, de facto relationships as a concept would undermine one of the few available sources of social acceptance available to women: ‘women do not have an equal social status to men and marriage is seen as the source of social acceptance’.

94.   A lengthy passage from a 2017 academic article published in the Journal of Contemporary Asia, Sarah C White ‘Patriarchal Investments: Marriage, Dowry and the Political Economy of Development in Bangladesh’ 2016, highlights two options available to couples who wanted to engage in a relationship with each other beyond the social norm of family-approved marriage – these were to elope (but still marry) or to conduct a relationship in secret.

95.   An article provided in submissions to the Department, ‘In Search of Equality: Marriage Related Laws for Muslim Women in Bangladesh’ written by Kamrul Hossain and published in the Journal of International Women’s Studies (November 2003) states that in Islam, marriage indicates legalization of sexual intercourse and provides a license to produce children.  Therefore, in Islam extra-marital sexual relations are prohibited, let alone reproduction.

96.   A decision made on 11 July 2011 by the United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), titled SA (Divorced woman – illegitimate child) Bangladesh CG [2011] UKUT 00254(IAC), refers to a report by a Dr Siddiqi who has reportedly researched the lives of Bangladeshi women for almost twenty years.  Dr Siddiqi is quoted as saying that in Bangladesh society the near universality of marriage is held across class and rural-urban divides.  She notes that for women, marriage is a cultural imperative, an essential step required to achieve the status of full social adulthood.  A woman without the protection of marriage was subject to considerable social stigma.  She opined that the appellant in the case would be in an extremely vulnerable position if she returned to Bangladesh for transgressing social/sexual norms. Dr Siddiqi states that rural communities have social mechanisms to sanction women who did not conform to established moral codes which are by no means absent in urban areas.  However, she notes that two key considerations are the economic and social status of the woman/family and the support extended by family and close relations.  In urban areas she opined that it is the lower middle and middle classes for whom social strictures were the most constraining.  She said it is rare to find middle class women who have openly had a child out of wedlock because it is simply not socially acceptable. Dr Siddiqi also opines that a woman perceived to have committed adultery would be at risk of harm, including persistent social and economic exclusion and she would most certainly be perceived to be sexually lax/available and therefore subject to constant unwanted sexual advances/harassment/abuse in her social transactions with landlords, employers, shopkeepers etc. Dr Siddiqi further states that pressure on women to remain married is great.  Although families may not always reject divorced daughters they were not embraced either however the situation is changing somewhat in urban areas.  That said the families were less likely to reject divorced daughters if the marriage in question was arranged by them.  If the marriage was one of their choice, especially if the parents actively disapproved of the match originally family support was much less likely to be forthcoming.  Across classes and communities there was much greater stigma associated with having an illegitimate child than in being divorced.  Sex outside of marriage was a moral transgression of a high order and even in Dhaka city it is unlikely that pregnancy out of wedlock would be allowed to become public.  She states however, that it is not likely a fatwa would be issued against a woman who had a child out of wedlock in urban areas.

FINDINGS AND REASONS

Country of reference

1. The applicant has produced her People’s Republic of Bangladesh passport which verifies her claimed identity and nationality.  The second and third named applicants were born in Australia to Bangladeshi parents.  Form 866C Part C which was completed at the time of application on behalf of the second named applicant, lists his nationality as Bangladeshi.  The third named applicant was added to the application later in the proceedings.  Based on the available information and in the absence of any information to the contrary, the Tribunal accepts all three applicants are nationals of Bangladesh.

2. When the applicant appeared before the Tribunal she was asked questions about her background in Bangladesh, her past and present relationships, her and her children’s health issues and her fears of returning to Bangladesh.  During the hearing the applicant was very nervous and she became highly emotional at times. Central to the applicant’s claims, and as discussed with her at length during the hearing, is the status of her marriage to [Mr B].  On this issue, the applicant was, in the Tribunal’s view, particularly unclear in her evidence.  

3. After the hearing the Tribunal received submissions and a further statement from the applicant indicating that she likely suffered a panic attack during the hearing which accounts for her inability to lucidly answer certain of the Tribunal’s questions.  This submission is supported by a letter from a treating doctor.  Based on the entirety of the medical evidence before the Tribunal there is no doubt in the Tribunal’s mind that the applicant has ongoing and serious mental health issues and she was undeniably distressed during the hearing.  In the circumstances the Tribunal finds it plausible and accepts the reasons provided post-hearing for her inability to clearly articulate the status of her relationship with her second husband.  Based on the evidence which is now before it the Tribunal accepts the following:

100.   The applicant has been married twice in Islamic marriage ceremonies which took place in Bangladesh.  The first marriage was arranged and sanctioned by her family whereas the second marriage was of her own choice and not embraced by her family.

101.   The applicant divorced her first husband, [Mr A] in Bangladesh in 2008 against her family’s wishes.  She fears no harm from him.

102.   The applicant was physically and emotionally abused by her second husband after her return to Australia and she continued to receive threats from him up until his departure from Australia.

103.   The applicant remains legally married to her second husband, [Mr B] who has resettled in Bangladesh.

104.   The applicant has been in an extra-marital, de-facto relationship with her current partner, [Mr C], since 2012.

105.   The applicant and [Mr C] have two children born out of wedlock in Australia.  The children’s birth certificates note [Mr C] is the father of the children but he is not listed as the husband of the applicant.

106.   The applicant has serious mental health issues for which she has been seeking medical treatment in Australia.

107.   The applicant’s son is diagnosed with Autism Spectrum Disorder and has an intellectual disability.

Is there a real chance the applicants will suffer serious harm if they return to Bangladesh?

Extramarital relationship and children born out of wedlock

108.   The Tribunal accepts that the applicant is still legally married to [Mr B] and that she has had two children born out of wedlock with her de-facto partner [Mr C].  The Tribunal accepts, based on the oral evidence of the applicant and her partner, that if the applicant is required to return to Bangladesh she will be accompanied by her partner and children.

109.   The Tribunal accepts that in order to obtain a divorce from [Mr B] and legally marry [Mr C], which is her stated objective, she would need to be in contact with [Mr B].  The applicant claims and the Tribunal also accepts, that she endured physical and emotional violence from [Mr B] during her marriage and that he continued to threaten her over the phone periodically until he departed Australia over a year ago. 

110.   The Tribunal has considered the likelihood of [Mr B] harming the applicant in Bangladesh and notes the lengthy period of time they have been separated.  Ordinarily this might dissuade the Tribunal from thinking that there is a real chance that he would still be motivated to harm the applicant.  However, the applicant claims [Mr B] is aware she is living in a de-facto relationship with [Mr C] and has born two children outside of the marriage.  The Tribunal considers, based on the country information which is outlined above, that her actions could be perceived as adultery and would cause [Mr B] shame and embarrassment and anger him and that he and/or his family members might likely try to harm her, including physically harm her, for this reason.  In the circumstances the Tribunal accepts the applicant would be unwilling or unable to easily secure a divorce on return to Bangladesh and that at least for the foreseeable future it is likely she would remain unmarried and living in a de-facto relationship with [Mr C] and their two children who were born out of wedlock.

111.   The applicant also claims to fear harm from members of the Islamic community on account of her living in a de-facto relationship and having born two children out of wedlock.  The applicant claims that she considers [Mr C] to be her husband and that she commonly refers to him as her husband.  Given this, the Tribunal questioned how members of the community would necessarily know that they are unmarried and/or that the children were born out of wedlock.  The applicant stated that they would be asked for proof of marriage when attempting to find accommodation and that there would be no point in lying about their situation as they could not provide the evidence required.  She said it would also become obvious that the children were born out of wedlock.  Similarly, she referred to her and her son’s mental health conditions and their need to access health and specialist education services, actions which she claimed would sooner or later reveal their circumstances.

112.   The Tribunal has considered the applicants responses and is persuaded that there are likely to be occasions including those involving officialdom which would reveal the fact that she is not married to her current partner and her children were born out of wedlock.  Based on the above country information, longstanding and conservative religious and social traditions continue to seriously disadvantage women in Bangladesh.  Remarriage let alone de-facto relationships are considered socially unacceptable and children born out of wedlock are extremely rare and also socially unacceptable.  The above country information indicates that extrajudicial punishments such as floggings of women accused of violating strict moral codes, such as the sanctity of marriage, do occur although there appears to be less of a chance of the applicant being subjected to such treatment or killed for her actions in her place of residence in Dhaka.  That said, the Tribunal is satisfied, based on the above country information, that the applicant will be subjected to ridicule, harassment, verbal abuse and social ostracism, by community members in Bangladesh.  The Tribunal is also satisfied that the two children could be stigmatised given they were born out of wedlock.

113.   The medical evidence before the Tribunal indicates that the applicant has serious mental health problems rendering her less likely to have the resourcefulness required to withstand social stigma and ostracism.  Furthermore, during the hearing the applicant broke down emotionally when discussing how she would deal with any discriminatory behaviour directed toward her children and particularly her son who suffers from autism.  The Tribunal is satisfied that the combined impact of discrimination and stigma likely to be faced by the applicant and in connection with the treatment of her children is likely to be severe in the applicant’s case.  The evidence before the Tribunal indicates that the applicant has been suicidal in the past and she told the Tribunal that she would be unable to withstand the treatment she is likely to encounter in Bangladesh on account of her marital status and the circumstances of her children’s birth.  In this case, the Tribunal is satisfied that the applicant will encounter emotional harm for the reasons claimed and that in these particular circumstances the harm would amount to serious harm.  In forming this opinion, the Tribunal has had regard to the claimed estranged relationship which now exists, and which the Tribunal finds plausible, based on the country information outlined above, between her and her family members in Bangladesh due to the choices she has made.  The Tribunal considers the applicant could not rely on the support of close family to overcome the psychological challenges she is likely to encounter on return to Bangladesh.   The Tribunal considers the essential and significant reason for the harm the applicant will face from members of the community will be her membership of particular social groups, namely women in extramarital relationships and women who have children born out of wedlock.

114.   While the Tribunal considers relocation to another part of Bangladesh might reduce the chance of harm she could encounter from [Mr B] to a remote chance, the Tribunal considers it will not resolve the problems or lessen the chance of harm she is likely to encounter from members of the Islamic community. Therefore, the Tribunal is satisfied that the applicant faces a real chance of serious harm in all areas of Bangladesh.

115.   The Tribunal has considered whether the applicant could avail herself of effective state protection against the harm she is likely to encounter.  The above country information indicates that despite certain legal prohibitions, gender-based violence and harassment continues to occur frequently in Bangladesh.  Prosecutions of offenders and the enforcement of laws against certain forms of discrimination against women are weak.  In addition, women are reluctant to report crimes against them as they may not be taken seriously.  Dr Siddiqi who is referenced in the country information above indicated in her response to the UK Tribunal that deeply entrenched patriarchal attitudes which don’t take women’s concerns seriously have produced procedural and administrative indifference and bias.  Having had regard to this information the Tribunal is not satisfied that effective state protection will be available to the applicant against the harm she is likely to encounter on return to Bangladesh.

Fears of harm to children

116.   The Tribunal notes the applicants claims in respect of the harm she fears for her children in Bangladesh, namely that they will be kidnapped or trafficked and that her son who has autism will be discriminated against and stigmatised. 

117.   As discussed with the applicant during the hearing the Tribunal is not satisfied that the circumstances exist for there to be a real chance or  real risk that the children will be kidnapped and trafficked, either by [Mr B] or others, as they will have the benefit of protection of a male guardian, their father. In any event, while the Tribunal accepts that children born out of wedlock are socially unacceptable and can be subjected to societal discrimination, it is not persuaded, based on the country information before it, that such children face a risk of being kidnapped, trafficked or killed.  

118.   During the hearing the applicant stated that her son with autism and an intellectual disability will be taunted and laughed at and the Tribunal accepts, as was submitted on the basis of the medical evidence provided, that he is likely to display behaviour which might attract some discriminatory and stigmatising behaviour from members of the community.  However, the Tribunal is not persuaded that the type of treatment which is feared, namely taunting and laughing, will amount to serious harm. 

119.   It is also submitted that the applicant’s son might not receive the same standard of medical care he receives in Australia and the Tribunal acknowledges DFAT’s assessment that few support services are available for those suffering from mental health disorders and that those private mental health facilities which exist are limited and expensive.  That said, the Tribunal is not satisfied that these circumstances give rise to a finding of serious or significant harm.   

120. Notwithstanding the above, having carefully considered the claims and the available evidence, both individually and cumulatively, and for all the reasons outlined above, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if she returns to Bangladesh with her partner and children now or in the reasonably foreseeable future for the reasons claimed. Therefore, the Tribunal finds she has a well-founded fear of persecution in Bangladesh. Accordingly, she satisfies the criterion at s.36(2)(a) of the Act for a protection visa.

121. The Tribunal is satisfied that the second and third named applicants are the applicant’s biological children and that they are members of the same family unit as the applicant for purposes of s.36(2)(b)(i) of the Act. It follows therefore that the second and third named applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

DECISION

122.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Tania Flood
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.

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36     Protection visas – criteria provided for by this Act

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(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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