1812842 (Refugee)

[2022] AATA 2863

1812842 (Refugee) [2022] AATA 2863 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1812842

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:4 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2022 at 8:58am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – Federal Court remittal – religion – Buddhist monk – applicant’s father killed by Islamic extremists – land dispute – fear of killing – state protection – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 417, 424, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Guo & Anor (1997) 191 CLR 559
Luu & Anor v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155 at 169 70
Randhawa v MILGEA (1994) 52 FCR 437
S395 v Minister Immigration and Multicultural Affairs [2002] HCA 71
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 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 24 November 2010 and the delegate refused to grant the visa on 29 March 2011. A review was sought by the Refugee Review Tribunal.

3. The Protection visa was refused by that Tribunal on 12 August 2011 (‘first Tribunal decision’). The applicant’s case was found to not satisfy requirements for a humanitarian consideration under s 417(1) on 18 August 2011. The matter was first remitted by consent to the Refugee Review Tribunal by the Federal Court (for a breach of s 425, failure to raise reasonableness of relocation at hearing) [in] November 2013. The visa was refused again by the second Tribunal on 31 October 2014 (‘second Tribunal decision’). The matter was remitted again to the Tribunal by the Federal Circuit Court (for jurisdictional error on the basis that the Tribunal failed to form the requisite state of satisfaction as to whether the applicant’s father was killed and his land taken by Muslim aggressors as he claimed) [in] July 2017. The visa was refused by a third Tribunal on 7 January 2016 (‘third Tribunal decision’). An appeal against the third Tribunal’s decision was refused [in] March 2018 by the Federal Circuit Court, before being remitted to the Tribunal a third time by the Full Federal Court (for jurisdictional error – the Tribunal erred in rejecting the applicant’s account based on four matters; a considerable part of the material relied upon by the Tribunal in finding that the whole of the applicant’s account was false was not of a kind that could be used by the Tribunal in the proper discharge of its statutory task to support such a conclusion, it was not probative of that conclusion and was not logical to use that material to support such a conclusion).

4. The applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a Protection 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 the applicant 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’).

   Mandatory considerations

9. 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 provided to the applicant at the hearing.

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

11. The applicant entered Australia on a Temporary Business visa [in] October 2010. The applicant then applied for a Protection visa on 24 November 2010, and was refused by the Department on 29 March 2011.

12. The following information is apparent from the application for protection forms. The applicant was born on [date], is of [specified] ethnicity and is a Buddhist. The applicant speaks, reads and writes Bengali, [another language] and English. The applicant’s father is deceased, and his mother resides in Bangladesh. The applicant is in contact with his mother via telephone. The applicant resided from September 2000 until May 2007 in [Country 1], then from May 2007 until December 2007 in Hathazari, Bangladesh, returning from December 2007 until October 2010 to [Country 1]. The applicant attended [school] [between specified years] in Raozan, Bangladesh, then attended [a named] College [between specified years] in Raozan, Bangladesh. The applicant has travelled to [specified countries], but does not provide dates. The applicant does not provide details of any relationships. The applicant is currently unemployed, and lists ‘Buddhist Monk’ under employment history; although indications made to previous Tribunals suggest the applicant has worked in Australia [in two specified occupations]. The applicant lists no recorded convictions.

13. In the application for protection forms, the applicant made the following claims (not corrected for spelling or grammar):

    Why did you leave that country?

    IN BANGLADESH MY FATHER WAS KILLED BY MUSLIM AGGRESSORS NAMELY [NEIGHBOUR A] AND HIS FAMILY. AFTERWARDS MY MOTHER AND ME HAD BEEN EXILED FROM OUR HOME. THAT FAMILY OCCUPIED OUR HOME ALONG WITH THE HOMESTEAD. WHEN I BECOME ADULT I TRIED TO MAKE A LAWSUIT FOR MY FATHER’S DEATH AS WELL AS TO REPOSESS OF OUR HOME AND HOMESTEAD. IF FURNED MY LIFE IN JEOPRADY THAT MUSLIM AGGRESSORS ATTACKED ME PHYSICALLY AND KEPT ME ON CONSTANT THREAT. AS A RESULT I HAD TO LEAVE MY COUNTRY AS FOR SAFETY OF MY LIKE.

    NOTE:- THE DETAILS ARE STATED IN THE STATUARY DECLARATION

    What do you fear may happen to you if you go back to that country?

    THOSE MUSLIM AGGRESSORS ARE STILL IN GREAT INFLUNCE IN OUR LOCALITY. IF I GO BACK TO MY COUNTRY THEY MAY EVEN KILL ME AS THEY COULD KILL MY FATHER 23 YEARS AGO.

    NOTE:- THE DETAILS ARE STATED IN THE STATUARY DECLARATION

    Who do you think may harm/mistreat you if you go back?

    THE MUSLIM AGGRESSORS WHO KILLED MY FATHER NAMELY [NEIGHBOUR B] AND HIS ASSOCIATES WILL HARM TO ME.

    NOTE:- THE DETAILS ARE STATED IN THE STATUARY DECLARATION.

    Why do you think this will happen to you if you go back?

    AS I WANTED THE JUDGEMENT OF MY FATHER’S DEATH AND TO RE-POSSESS MUSLIM OCCAPIERS WOULD NOT LET IT GO EASILY. THEY ARE NOTORIOUS LOCAL TERRORISTS AND THEY CAN DO WHATEVER THEY WANT SO IT IS VERY MUCH EXPECTED THAT THEY WOULD BE THREATFUL TO MY LIFE.

    NOTE:- THE DETAILS ARE STATED IN THE STATUARY DECLARATION

    Do you think the authorities of that country can and will protect you if you go back? If not, why not?

    I DO NOT THINK THE GOVERNMENT WILL BE ABLE TO PROTECT ME AND MY RIGHTS. IN A COUNTRY LIKE BANGLADESH. THE POLICE ADMINISTRATION IS ALWAYS CORRUPTED. THE POWER IS ALWAYS TRENDED TO THE PERSONS. THE MINORITIES RIGHTS ARE ALWAYS NEGLECTED. AS I AM YET TO OBTAIN THE PROPER JUDGEMENT OF MY FATHER’S KILLING HOW CAN I EXPECT THE GOVERNMENT AUTHORITY WILL PROTECT ME.

    NOTE:- THE DETAILS ARE IN MY STATUARY DECLARATION

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

    Statuary Declaration

    Name:           [The applicant’s name]
    Date of Birth:   [specified]
    Father:          [named]
    Mother:          [named]

    Nationality:     Bangladeshi by birth

    1.I was born in a Buddhist family of [Village 1] which is located [distance] to [a named location]. In our village, there are two hundreds of Buddhist families and a Buddhist monastery. Our Buddhist village is mostly surrounded by Muslim inhabitants. My homestead was located at the edge of [Village 1] (Buddhist village).

    2.In current world, the whole human civilization is under threat because of Muslim fanaticism. The impact of this fanaticism is more severe in a developing country like Bangladesh in where a vast amount of populations are uneducated. The minority people of Bangladesh who have to live among those 80% Muslim fanatics are to experience the consequence of such kind of fanaticism in every moment. For example, the local Muslim terrorists namely [names include Neighbour B] and many others come to our Buddhist locality very often and they make every kind of oppression upon our Buddhist villagers.

    3.In Bangladesh, the minority people are always subordinate to Muslim majority. They are always deprived of their proper humane dignity, rights and the opportunities of any financial developments. It seems that if the minority people want to live in this country they always have to be a second class citizen.

    4.Since my childhood, I have been a victim of persecution of Muslim terrorism and aggression. When I was just [age] years old I lost my father and had been exiled from home along with my mother by local Muslim aggressors.

    5.My father had a business of selling [products] in local market. Though my family was not so rich and we did not own much of cultivated land but we had a big area of homestead land. Our homestead was very closed (around 50 metres) to a local Muslim family whose householder's name is [Neighbour A]. It is mentionable that the above mentioned name [Neighbour B] is his son, who is a local notorious hooligan and has been running his outraging activities for more than 25 years mostly upon to the local Hindu and Buddhist inhabitants.

    6.As our homestead was closed to [Neighbour A’s] home, his evil eye laid to it and intended to occupy it forcefully. In the beginning his family members started to cut down and rob away the trees grown on our homestead. They also started to cause every sort of problems for our family. After all they were intending to force our family out of the homestead.

    7.On [a day in] September 1987 at the afternoon [Neighbour A] and his son [Neighbour B] came to our homestead and took the initiative to build up a new home for them. When my father tried to protest them, the all male members of that famiIy came out and started to beat my father. The torture was so severe on his head that after sleeping on that night he never wake up again.

    8.My mother became so helpless with the situation that he couldn't understand what to do. The whole Buddhist villagers were so scared of those Muslim culprits because of their influence in this locality. Therefore, the villagers didn't come ahead to help my mother. Eventually, my mother went to the police station with the help of my closed relatives but the corrupted police administration refused to file a murder case.

    9.After couple of months of my father's death it became quite impossible for my mother to stay in our home because of the constant mental oppression and various problems created by that Muslim family. Eventually, she had to leave our home along with me specifically for safety of my life and that Muslim family took over the possession of our home along with the whole homestead land.

    I0. My mother accompanying me moved to my maternal home which is located at the village of [Village 2 variant] of Raozan Thana, [distance] east of [Village 1] village. My only maternal uncle was so poor that he was unable to bear the excess cost for us. So, my mother had to look for some domestic works in many wealthy families in the village.

    11. In [January] 1988, my mother brought me back to [Village 1] and hand me over to Ven. [Abbot A], the abbot of [Monastery 1] (Buddhist monastery) who was also running [Village 1] [Orphanage 1] Buddhist Orphanage. Staying at the orphanage I started my study life. In [year] I passed [school] exam and got admission into a college for [a specified] course.

    12.During my college Iife I came to know that I can't stay at the orphanage for ever and also knew all the details of my background from my mother and relatives. As I grew adult and conscious I came forward to file a murder case as well as an allegation for illegal possession of our homestead land. [In] November 2000, making my mother as the plaintiff we lodged an allegation against [Neighbour A], [Neighbour B] and his family.

    13.We tried our best to achieve proper judgment of my father's death and to repossess of our home and homestead land. Unfortunately, the influence of those accused persons was so strong that we were unlikely to achieve any outcome from that case. Instead the situation placed me in a constant life threatening condition.

    14. In May 2000 on one evening I was way back to the orphanage from local market, a group of four/five Muslim young boys led by [Neighbour B] caught me on the street. On a sudden they started to beat me and it was so terrible that I almost became unconscious. At the end I found [Neighbour B] was shouting at me as "This time we are leaving you with just bashing. If you and your mother don't withdraw the case we will capture your life." When I came back to the orphanage, the [Abbot A] was so upset that he suggested it won't be safe for me to stay at the orphanage.

    15.So, on 30th September 2000 with the financial support of [Abbot A] I went to [Country 1]. In [Country 1] I was engaged in religious study and Dhamma practice under the guidance of [a named leader] at the monastery of [name]. During stay in [Country 1] I had visited [other specified countries].

    16. On the first week of May 2007 I came back to Bangladesh expecting the situation had become much better as the caretaker government took over the country's power. After a month of my arrival in Bangladesh, I proceeded to revive the case against [Neighbour A’s] family. As a result, the local police tried to take some actions against them. But still they somehow managed to avoid any punishment. On the contrary, [Neighbour B] and his group were continuing to threat me to withdraw the case. On one occasion, his group also physically attacked me and stabbed me on my chin and thigh.

    17.Within a few months the situation turned into such a terrific state that I could not live at [Village 1]. I had to go into hiding to avoid any attack by [Neighbour B’s] group. As my mother became worry about my life, finally I decided to leave Bangladesh again. In the mean time, I had to get a new passport because my old passport had been run out of blank pages. [In] December 2007 I left for [Country 1] through India.

    18.In [Country 1] I have been staying in the same monastery as I lived before. After a year of arrival in [Country 1], I was visiting [City 1] with a group of other Buddhist monks. On the train I lost one of my carrying bag in which my old passport was kept. At that time my current passport was with my Angsha's pocket (upper robe).

    19.In the mean time, I have visited [Country 2] for couple of times to attend some religious ceremonies. On November 2008, I planned to visit [Country 3] to attend a conference and I managed the visitor visa. Unfortunately, just prior to the conference I became seriously sick from Typhoid. Eventually, I lost the chance to visit [Country 3]. On July 2010 I managed a visitor visa for [another country] but I didn't fly [there] as the Varsha period (rainy season) for monks was due to start within next two weeks.

    20.Finally, on 14th Oct 2010 I managed to obtain a tourist visa as I have been invited to attend in a conference named "[name]". But I haven't attended the conference after arriving in Australia [in] October 2010 as my prime prospect of coming to Australia is for safety of my life.

    21.In Australia I feel this is the country that I am looking for last 10 years. In this country, all human beings can live with their own identity, dignity and rights. Moreover, the life of a human being is more than safe here. Hence, I would like to convey my earnest request to the Australian government to consider my above miserable situation and hope I will be granted a protection visa.

    Note: I will provide the paper documents relevant to my claim as soon as possible.

15. The applicant provided two other statutory declarations. Relevant information from these statements are referred to further below.

16. A fourth statutory declaration was provided shortly before the Tribunal hearing dated 14 June 2022 which provided as follows:

    1.I am writing this statement to explain my current situation. The risk of harm from [Neighbour A’s] family and his gang group.

    2[Neighbour B’s] group has occupied my family's land for 15 years. As my mother passed away in 2016, the only remaining person who may challenge their occupation of my family's land is me. If I have to return to Bangladesh, the only way to support myself is to have access to that family land.

    3. Further, as I am a Buddhist and a minority in Bangladesh, there will be no help I can get to prevent them from harming me because in Muslim religion I am not considered having same human right.

    4.If I return to Bangladesh, [Neighbour B’s] group will harm me like what they did before. The risk of harm from my religion

    5.As I explained previously, there are violence against Buddhist in Bangladesh by the majority Muslim Group. This kind of incidents often increases in number after the Buddhist Government in Myanmar oppressing the Muslim Rohingya population in Myanmar. As the Myanmar government recently just been reported for oppressing Rohingyas and denying the "Rohingya genocide", the Bangladesh Muslims are very angry. If they discover that I have been a monk. I believe that they will be more inclined to harm me.

    6.Most violence against the Buddhist community in Bangladesh in unprotected as the government tries to supress the information. I believe that I will be very vulnerable in Bangladesh because I do not have any family that can support me or protect me.

    7.My fear for harm is real as I did not even return on my mother's death in 2016 because I am afraid that I will be harmed.

    8.Please understand that I have to recall bad experiences every time in the interview and they are very traumatic to me. I am also easy to be anxious when there is pressure. I am having difficulties maintaining calm in my speaking especially when I was under pressure and when the interview is very long in time.

    9.I am really sorry for not being consistent in my responses, I was really nervous and I cannot think deeply when I am under pressure. I hope my previous letter has made it clear that what happened before, and I hope you can understand that I have no intention to lie about anything or hide anything from immigration.

1. The applicant submitted the following documents to the Tribunal:

   ·An ordination certificate dated [in] 2000 issued by the [named authority in] Bangladesh, certifying that the applicant was ordained by [Abbot B] at [Monastery A variant], Hathazari, Chittagong.

   ·A letter from the Buddhist High Priest, [from Country 1], dated [in] April 2011, stating that the applicant came to [Country 1] in 2000, is a traditional Buddhist, and the only son in his family. The letter states that the applicant’s father was killed in 1987, the writer understands that the applicant came to Australia and hopes the Australian government will grant the applicant asylum.

   ·A translation of a First Investigation Report (FIR) dated [in] April 2000, signed by the officer in charge of [a named] Police Station, Chittagong, stating the name of the accused and their addresses, directing a proper investigation by visiting the place of occurrence.

   ·A letter from [Orphanage 1], Buddhist Orphanage, confirming that the applicant was a student at the orphanage from [between specified years]. The letter states that the applicant’s mother was unable to take care of him following his father’s death, and he was sent to the orphanage to live. The letter states that the applicant went to [Country 1] for safety and came back in 2007 to seek justice (unsuccessfully) for his father’s death. The letter concludes that seeking asylum in Australia would be the best solution for the applicant to live a safe and stable life.

   ·Prescription of [Doctor A], for treatment of an injury, stating the applicant required six stitches [in] June 2007 and prescribing medication.

   ·A translation of a death certificate registered [in] May 2014, for a person whom the applicant indicates to be his father, stating a date of death [in] September 1987 in [Village 1], Hathazari, Chittagong. No cause of death is stated.

2. The following additional documents were provided:

   ·A report entitled ‘Bangladesh 2017 International Religious Freedom Report’ by the United States Department of State, Bureau of Democracy, Human Rights, and Labor. The report notes attacks on religious minorities, particularly on Buddhists and Hindus. The report is 14 pages long and covers the status of the government’s respect for religious freedom, the status of societal respect for religious freedom, and US government policy and engagement.

   ·A news article entitled ‘Rangunia Buddhist minority persecuted, innocent fleeing for fear of lawsuits’, published by Chattogram Bureau, with no date. Article outlines allegations of minority Buddhists being tortured by ‘local influential people’ and lawsuits being brought against Buddhist victims.

   ·A news article entitled ‘Harassment of Bangladeshi blogger’s family condemned’, published by UCA News Dhaka, dated 22 July 2020. The article notes the parents of blogger Asad Noor were being harassed after he was arrested for supporting a Buddhist monk and a temple under the Digital Security Act 2018.

   ·A news article entitled ‘Minorities under attack in Bangladesh’, authored by Mubashar Hasan, published by The Interpreter, dated 18 November 2021. The article outlines a series of attacks on minorities in Bangladesh, including a Buddhist monastery that was set on fire in the country’s south-west. The article notes Facebook is a key platform for inciting hate towards minorities.

   ·A news article entitled ‘Protests over Buddhist monk’s murder in Khagrachari’, published by New Age, dated 2 February 2022. The article outlines death of the principal of Dharmasukh Buddhist monastery, who was stabbed to death.

   ·A news article titled ‘Attacks, land grabs leave Bangladesh’s Indigenous groups on edge’, authored by Zarif Faiaz, published by Aljazeera, dated 30 July 2021. The article outlines that on 31 May 2021, two Bengali construction workers looted a Khagrachari monastery and attacked a monk. The article notes that locals believe the attack was motivated by a ploy to ‘grab land’ from Indigenous peoples.

   ·A certificate of appreciation from [Employer 1] to [name] (the applicant) for ‘being a trustworthy employee and an excellent example of honesty’, dated May 2022.

3. The Tribunal wrote to the applicant on 6 May 2021 pursuant to s 424A of the Act as follows:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   The information is evidence given by you in the interview with the delegate of the Minister which took place on 3 February 2011. The information is evidence that you gave concerning the presence of the individuals who you claim would or might harm you or your mother. The information is relevant to the extent that they create a risk to you outside of [Village 1], particularly in [Village 2], which is where your mother moved to after your land was taken and your father killed.

   In the interview you claimed that those individuals do not have much influence or power in that area ([Village 2]). You indicated that they do not go to that place ([Village 2]) so they could not do anything to your mother.

   This evidence is relevant because it could suggest that if there is a risk to you from the individuals who took your land in your home town of [Village 1] that the risk is localised, given that the information suggests that there was not a risk in the village of [Village 2] which you have indicated is [distance] from [Village 1]. The consequence of relying on this information could be to conclude that you could move away from [Village 1] within Bangladesh to escape harm, including to [Village 2].

   The fact that your mother and uncle lived in [Village 2 variant] could be one factor to determine that it would be reasonable for you to move to [Village 2]. The fact that you are an adult with life and work experience, including making a life for yourself for a number of years both in [Country 1] and Australia could be factors that would indicate it would be reasonable for you to relocate from [Village 1] or somewhere in Bangladesh. The information that individuals that wish to harm you did not have power and influence in [Village 2 variant] and did not go to that place is also relevant because it is inconsistent with subsequent evidence you have given as part of your protection proceedings.

   This includes inconsistent evidence in the hearing of the first Tribunal held on 9 August 2011 in which you said that these individuals searched for your mother and every time they came to where she was she would travel away. This evidence which suggests that the individuals wishing to harm the applicant and you knew where your mother was living and visited that location, contrary to your evidence in interview with the delegate.

   The Tribunal notes various explanations given by you in the Tribunal hearing to explain these inconsistencies. This includes that your mother was not physically harmed and that is why you told the Department that they did not do anything to harm her. You indicated that you told the Department that they visited your mother where she lived but did not approach her. You indicated that you were uncomfortable with revealing information to the interpreter.

   In relation to these explanations, the Tribunal notes that you told the delegate that the individuals that would harm you and your mother did not go to the place that your mother was living. You did not say that they visited your mother where she lived but did not approach her. You provided other detailed evidence with the use of the interpreter with whom you claim you were uncomfortable which does not explain why you would give incorrect and inconsistent evidence on this relatively simple, although not insignificant, question of detail.

   Your additional written statement dated 21 February 2014 indicates that a few days after you and your mother went to your uncle’s home in [Village 2] the group that wished to harm you discovered your location and asked your uncle where you were. You also in the statement indicated that after the 2007 attack the individuals seeking to harm you and your mother went to uncle’s home in [Village 2] where your mother was living.

   Again, this evidence is inconsistent with your evidence to the delegate the individuals did not go to [Village 2].

   Similarly inconsistent is evidence by you in a further statement dated 2 August 2015 to the second Tribunal in which you said that your mother was last approached by the relevant individuals seeking to harm you and her in 2007 at her brother’s house. This information is relevant to the review because the various inconsistencies on this issue are undermining of your credibility, particularly in relation as to whether there was knowledge of your location or visits by the individuals seeking to harm you and your mother to the home of your uncle in [Village 2] where your mother was staying.

   If we rely on this information in making our decision, the Tribunal might conclude that the truth of the situation is the first evidence you provided in this respect at the interview with the delegate that the relevant individuals did not have influence or power in that area and did not go to your mother’s residence in [Village 2].

   You are invited to give comments on or respond to the above information in writing.

4. The Tribunal also wrote to the applicant on 6 May 2021 making the following request for information:

   The Tribunal seeks information and/or responses in relation to the following issues:

   Details of attack in 2007

   Your original written statement in 2010 says that during this attack in May 2007 you were stabbed in the chin and thigh.

   In the hearing of the first Tribunal held on 9 August 2011 you provided detail of this incident. You indicated that they tried to slash you with a knife but you narrowly escaped serious injury. You indicated that the knife hit the lower part of your chin and somehow you manage to escape from the scene. You indicated there were two to three people involved and it was their intention to kill you on the spot. You confirmed to the Tribunal on two occasions that the only place you were injured was on your chin. It is noted in this account you do not indicate that you were stabbed on the thigh.

   The Tribunal provides an opportunity to comment on this inconsistency.

5. The applicant provided on 17 June 2021 the following written response to these two letters (not corrected for spelling or grammar):

   I am writing to explain in reply to your questions in your letters. I understand that there are some inconsistencies in my response during the different interviews, however, it was not my intention to conceal anything or mislead in these interviews. I apologise for any confusion caused because of my mental instability and please do understand that it is beyond my control.

   I was raised in an orphanage, and I do not have a similar background to normal people. I often find it is difficult for me to think deeply and I have difficulties controlling my emotions. As I listened to the recording of my interview, I founded that I got some answers wrong as I was nervous and did not understand the question properly. I really wish that you can give me a chance to explain the situations clearly.

   Please also understand that I have to recall bad experiences every time in the interview and they are very traumatic to me. I am also easy to be anxious when there is pressure. I am having difficulties maintaining calm in my speaking especially when I was under pressure and when the interview is very long in time.

   It has been difficult for me to obtain more evidence from Bangladesh as my mother has passed away and I cannot return to Bangladesh. However, I will try my best to continue to look for supporting evidence and I want to make the following clarifications.

   Regarding the group's visit to my mother's place

   In one letter, you have asked if [Neighbour B] and his group has visited my uncle's place where my mother was hiding. The fact is that the group has visited my uncle's place many times.

   Since the case in 2000, they kept looking for me and my mother. Although my mother is the one who lodged the case, they were targeting me as the primary target. This is because under the Hindu law at that time, a father's land can only be inherited by his son, the mother is taking care of the land for the son. As I am the son and if they kill me. There will be no one stopping them from taking my father's land.

   Soon after the attack in 2000, I went to [Country 1] to hide. However, as [Neighbour B’s] people sometimes saw my mom at the temple during festivals, they know she was living in the area and thought I was still living nearby. Therefore, they were looking for me and my mother and they often visited our families place trying to find me.

   They have visited my uncle's place many times, where my mother was hiding. It was my uncle who helped my mother to hide. When they come for my mother, sometimes my uncle says my mother was not in the house and tell those people away. Sometimes, my mom escapes from the back door when people tried to break in. They never find my mother, but they harassed my uncle and his family and threatened to kill him if they found out if he was providing assistance to my mother.

   From May to Dec 2007, when I tried to reopen the case, they visited several times my uncle's place to look for me. I was hiding somewhere else until I went again to [Country 1]. After I went to [Country 1] in Dec 2007, the group visited my uncle's place several times.

   In the 2011 interview, I have made mistake of saying that they never visit my mother. I was thinking that my mother was not physically harmed. I was nervous and I was not mentally stable then. I was confused as my mother sometimes tell me "it's alright, nothing happened". I used to believe her and hope she is safe but later I knew she was lying to me to make me feel better. In the first hearing, I made a mistake due to the pressure. I wanted to say that they never found my mother but instead, I wrongly said that they never looked for my mother.

   In 2016, my mother passed away. After that, they are still visiting my uncle's place irregularly, several times a year. Trying to find me or my mom and thus "finish the matter". My uncle's son [Cousin A], told me about the situation in Bangladesh and he told me he cannot take care of me. He said he cannot help me more and I need to take care of my own life by myself.

   I only failed to make my explanation in the very first interview and I have explained my reasons. Ever since then, I have been consistent in my statements and interviews.

   Details of my Injuries

   I need to clarify that I have two major incidents with [Neighbour B] Group.

   In my previous interviews, I have sometimes errored in describing these two occasions as the memories got mixed together when I was under pressure.

   The incident in 2000

   In 2000, after my mother's filling of the case. I was attacked and beaten by the group. They did not pull knives at that time. It was after my college in the afternoon, I went to the market, and this happened on my way back from the market to the orphanage. I almost hit until I faint and I felt very scared. Knowing that they will continue to harm me, I decided to go to [Country 1] to hide.

   The incident in 2007

   As the caretaker government is in place in 2007, I thought there was a chance to revoke the case. So I returned home and hoped that things would be different. However, I was once again attacked when [Neighbour B’s] group found out I was back.

   This attack happened when I was returning from my friend's place to the orphanage, and I was surrounded by [Neighbour B] and his people. There are more than 3 people around me at that moment. One man held a knife at my chin from behind and the other man is about to stab me. I pushed away from the one who was holding the knife and that is how I got cut on my chin. I have also got injured on my thigh, I did not remember how did I my thigh was injured as I was running for my life. I was lucky that the scene of the attack is not far from the orphanage and I successfully ran to the orphanage. As they did not dare to kill me in the orphanage as there are many people. After I escaped from the attack, I sneaked out and I was hiding at other places until I go to [Country 1] again.

   In the interview with AAT, I made a mistake while speaking about the location of the attack. I referred to the first incident when I was explaining the second one. This was because I was nervous and I was under pressure.

   I forgot to mention the injury on my thigh also because of my pressure. I did not notice the injury on the scene and I was overwhelmed by the pain from my chin and the fear of death. I only notice the injury on my left thigh after I ran to safety. I did not recall when I was on the spot of AAT hearing because I was too nervous and when I was recalling the traumatic experience, the only impression was the injury on my chin.

   Moreover, the injury on my thigh was not that deep and has been recovered at the time of the hearing. Because it is often covered by cloth, I give less notice to the scar. I did not recall that I had an injury on my thigh when the member asked the first time. I explain to the member that I forgot about the injury in the hearing. In my written statements, I can remember the injury because I can think carefully and slowly and I am not as nervous.

   I am really sorry for not being consistent in my responses, I was really nervous and I cannot think deeply when I am under pressure. I hope this statement has made it clear that what happened before, and I hope you can understand that I have no intention to lie about anything or hide anything from immigration.

6. Accompanying this statement were the following supporting statements and translations:

   ·An undated statement of [Cousin A]. It is clear from the statement that this person is the cousin of the applicant; the son of the applicant’s mother’s brother with whom she went to live after the family home was taken. The statement confirms claims by the applicant of he and his mother fleeing to his uncle’s home when family land was taken in 1987. The statement confirms claims that the applicant’s mother filed, with the assistance of her brother, a case against the Muslims who had taken the family land. The statement indicates that since then the terrorists have come to the home searching for the applicant’s mother and threatening her brother that if they are sheltering the applicant and his mother they will kill the applicant’s uncle. In that moment, the uncle said that he will not give them shelter and at present did not give them shelter. It is claimed that the terrorists attended the home and searched it many times. They said that they were there to arrest the applicant’s mother and the applicant. There is reference to the applicant’s mother dying in fear of the terrorists.

   ·An undated statement of [Mr A] of [Village 1] village. The writer is a Buddhist and corroborates claims by the applicant of local fundamentalist Muslim terrorists in the area obstructing religious activities and having been illegally taking possession of land of Buddhists, resulting in villages becoming a target for the torture. These individuals killed the applicant’s father and took the family’s land. It refers to the applicant and his mother seeking refuge elsewhere but the fundamentalist Muslims continuing to search for the applicant. It makes reference to these individuals harming the applicant with a knife in 2007 or 2008 when the applicant had come from [Country 1]. As a result, the applicant returned to [Country 1].

   Independent information

1. The 2019 DFAT Report on Bangladesh provides the following information:

   RELIGION

   [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 any 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.[1]

   [1] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [3.27]–[3.28].

   […]

   Buddhists

   [3.51] Buddhists are a small minority in Bangladesh, with most Buddhists being indigenous people living in the CHT. As discussed in Chittagong Hill Tracts (CHT) indigenous people, disputes between predominantly Muslim Bengali settlers and indigenous groups in the CHT from minority religions occur frequently, particularly over land ownership and usage with Muslim settlers. While some of these disputes may take on religious overtones, DFAT assesses that in most cases religion is a contributing factor rather than a causative one.

   [3.52] There have been occasional instances of societal violence elsewhere in Bangladesh that have targeted Buddhists based on religion. The most serious incident occurred in September 2012, when up to 25,000 Islamists burned several Buddhist temples and approximately 50 Buddhist houses in Cox’s Bazar during protests against a Facebook posting by a Buddhist man that showed a desecrated Koran (see Blasphemy/Defamation of Religion and Atheists). DFAT understands an effective police response to the incident prevented further violence, and Buddhist leaders blamed the violence on outsiders rather than the local Muslim community. Separately, Islamist militants in the CHT killed one Buddhist monk in May 2016 during the wave of militant attacks against minorities.

   [3.53] The Buddhist community in Cox’s Bazar has expressed strong concerns that local anger against the persecution in Myanmar of the Muslim Rohingya population may lead to a violent backlash against local Buddhists. DFAT understands Bangladeshi authorities have deployed additional police in Buddhist areas in Cox’s Bazar to prevent a repeat of the Islamist protests that targeted Buddhists in 2012 (see People who identify as Rohingya (Rohingya). There have been anecdotal reports of harassment of some Buddhists in Dhaka and elsewhere in relation to the Rohingya issue.

   [3.54] DFAT assesses that Buddhists face a low risk of societal violence in the form of occasional localised incidents. These are likely to take place in the context of other events, such as communal disputes over land ownership and usage in the CHT. Like other minorities, Buddhists may face a risk of sporadic attacks from Islamist militants.[2]

   [2] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [3.51]–[3.54].

   […]

   STATE PROTECTION

   [5.1] Political interference and corruption operate to constrain the rule of law in Bangladesh. While some state institutions continue to work to enforce the fundamental rights of citizens, insufficient funding and a lack of political support hamper their efforts. Other organs of state protection, including the military, police, and lower courts, can be heavily politicised, under‑resourced, and subject to corruption. DFAT assesses that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.[3]

   [3] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [5.1].

   […]

   Police

   [5.4] Bangladesh Police (‘the police’) is the country’s primary law enforcement agency, and it plays a central role in maintaining national law and order. The Minister for Home Affairs has portfolio responsibility. The police force comprises approximately 195,000 personnel, organised into a number of specialised organisations that include the RAB, the Criminal Investigation Department, the Special Branch, the Armed Police Battalion, Metropolitan Police, and multiple anti-terrorism units.

   [5.5] Professionalism varies across the police. The national system of policing can be effective, and the force has often demonstrated an ability to track down suspects across the country. Political and bureaucratic interference is a significant impediment to police efficiency, however. Both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests. Police systems are heavily bureaucratic. While senior officers are relatively well trained and well paid, and occupy important positions within the bureaucracy, those in lower ranks are often poorly paid, trained and equipped. Low salaries encourage some police to supplement their income through demanding bribes from members of the public (see also Corruption and Prevalence of Fraud). The US State Department has consistently reported that public distrust of police and security services deters many Bangladeshis from approaching government forces to seek assistance or to report criminal incidents.

   [5.6] Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. Investigations into police misconduct are internal, and generally lack either transparency or credibility. DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.

   Judiciary

   [5.7] Part VI (Articles 94-117) of the Constitution outlines the country’s judicial functions, while Article 22 commits the state to ensuring the separation of the judiciary from the executive. The judiciary models the British system, and comprises the Supreme Court and subordinate courts including the High Court and district and local courts and tribunals. The Supreme Court comprises an Appellate Division and a High Court Division. The Appellate Division decides appeals against High Court decisions. It has the power to draft new amendments or additions to the law, overriding Parliament if necessary. The High Court has authority over

   all subordinate courts and tribunals. Subordinate courts form the backbone of the Bangladeshi judicial system, and comprise criminal and civil courts. Tribunal courts include (but are not limited to) those dealing with income tax, administrative, election, and public safety issues.

   [5.8] The court system faces a number of major challenges. Case backlogs are a particular problem: in April 2019, the Chief Justice reported that there were over half a million cases pending in the Supreme Court alone, and that the case backlog had reached a critical point. The problem of case backlog is greater at lower levels, and has been exacerbated further by the large number of cases brought in relation to the 2018 campaign against drugs (see also Extra-Judicial Killings). In some cases, the length of pre-trial detention for accused persons has equalled or exceeded the maximum sentence for the alleged crime. Vexatious defendants may use this process by introducing continuous interlocutory applications to delay processes indefinitely. According to the US State Department, the granting of extended continuances effectively prevents many defendants from obtaining fair trials due to witness tampering, victim intimidation, and missing evidence.

   [5.9] Corruption and politicisation are significant issues for the judiciary. Human rights observers report that, in many cases, magistrates, attorneys, and court officials have demanded bribes from defendants, or their decisions have been influenced by their loyalty to political patronage networks. Judges who rule against the government reportedly risk transfer to other jurisdictions.

   [5.10] In-country sources report that the very poor are unlikely to be able to access justice through the court system due to the high costs involved in litigation and the need to pay bribes to various court officials. The National Legal Aid Organisation provides free legal services to those who cannot afford other forms of legal representation. According to local NGOs, there has been a steady increase in the number of state supported legal aid cases since the passing of the Legal Aid Law (2000), amended in 2002. Some NGOs also run legal aid schemes (funded by donors), which supplement services provided by the government. Most NGO legal aid cases concern family disputes.

   [5.11] Courts are largely paper based and bureaucracy is slow, requiring papers to be physically moved between officers or buildings, a process that also attracts demands for bribes for each movement of documents. Court infrastructure (buildings, equipment), especially of lower courts, is generally poor, resulting in poor storage and access to records. Higher courts may have well-qualified judges, but lower courts are less likely to apply the law fairly or consistently.

   [5.12] Although the law provides for an independent judiciary, a constitutional provision according the executive branch authority over judicial appointments to lower courts and over compensation and assignments for judicial authorities undermines full judicial independence. In August 2017, the High Court ruled that a 2014 constitutional amendment giving parliament impeachment power over high court judges was unconstitutional. In issuing the judgment, the Chief Justice strongly criticised the government’s actions in introducing the amendment, describing it as ‘narrow parochialism’. In response, the government publicly condemned the judgement, interpreting the Chief Justice’s comments as an attack on the Prime Minister and her father and demanding that he resign. In October 2017, the government announced that the Chief Justice had applied for leave due to health reasons, and that he was facing 11 criminal charges including graft and money laundering. The Chief Justice subsequently tendered his resignation on 11 November 2017 and subsequently left the country. The Law Minister later accused the Chief Justice of attempting to stage a ‘judicial coup’.

   [5.13] DFAT assesses that capacity issues, corruption, and politicisation weaken the ability of the judiciary to deliver effective justice.[4]

   […]

   Traditional/Informal Justice Mechanisms (Village Courts)

   [5.17] There are around 1,000 active village courts located throughout Bangladesh. Village courts operate under the Village Court Act (1976), and play a vital role in providing access to justice for a significant portion of the population – more than 70 per cent of disputes in Bangladesh are resolved outside of the formal justice system. These quasi-judicial local courts deal with petty cases such as land disputes, family disputes, and money lending cases. Village court verdicts are appealable in the civil courts at the district level, but DFAT understands that judgements are generally respected. Village courts apply a broad range of traditional rules, often heavily influenced by traditional religious or customary law. Their decisions on personal status issues tend to be biased against women (see Personal Status Laws). NGOs have reported instances of religious leaders imposing flogging and other extrajudicial punishments on women accused of violating strict moral codes.[5]

   […]

   INTERNAL RELOCATION

   [5.22] Article 36 of the Constitution guarantees citizens the right to move freely throughout Bangladesh, to reside and settle in any place therein, and to leave and re-enter Bangladesh. There is no legal impediment to internal movement within Bangladesh, and Bangladeshis can and do relocate for a variety of reasons. Major cities, such as Dhaka and Chittagong, offer greater opportunities for employment. DFAT assesses that women without access to family or other support networks are likely to face greater difficulties in relocating then men, particularly if they are poor, single, and/or have suffered gender-based violence.

   [5.23] As noted in Chittagong Hill Tracts (CHT) indigenous people, the CHT is a heavily militarised area. Access to large sections of the CHT is restricted, and military checkpoints prevent free movement in the CHT by local people. Local NGOs report that many indigenous people have left the CHT to live in other parts of the country.[6]

   [4] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [5.4]–[5.13].

   [5] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [5.17].

   [6] DFAT, Country Information Report – Bangladesh, 22 August 2019, para [5.22]–[5.23].

   Hearing, credibility, findings, and assessment

2. 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.

3. 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.

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

5. Based on the applicant’s evidence in the hearing, the Tribunal maintains credibility issues with claims by the applicant that the family that took the land have searched for the applicant and his mother over many years, including in multiple locations where the applicant lived, as he claimed in the hearing, on his return visit to Bangladesh in 2007. The explanations for the inconsistency in these claims, with the applicant claiming in the interview with the delegate that this family never visited the home of the uncle in [Village 2] both in the response to the s 424A letter to the applicant and in the hearing, were not convincing.

6. As put to the applicant in the hearing, the Tribunal has difficulty accepting as plausible that if this family were seriously looking for the applicant’s mother from the time of the original proceedings to regain the land in 2000 until the applicant’s mother died in 2016, and knew as to her whereabouts with her brother, they would not have found the applicant’s mother during this significant period of time. The response at hearing by the applicant that his mother kept a low profile and would stay in other places where she was a housekeeper was not convincing to the Tribunal, in regards to those wishing to harm the applicant and his mother not finding his mother over a period of 16 years.

7. Notwithstanding inconsistencies in relation to this matter, based on the extensive evidence by the applicant in multiple proceedings, in the interview with the delegate and in multiple Tribunal hearings, the Tribunal is persuaded that in 1997 the applicant’s family land was taken by a local Muslim family and his father was killed when the land was taken. The Tribunal is satisfied that the applicant’s mother relocated to her brother’s home in a village [distance] away and that the applicant eventually went into an orphanage where he grew up.

8. The Tribunal is satisfied that in 2000, legal steps were taken by the applicant’s mother to reclaim the land. The Tribunal is satisfied that there was a degree of intimidation towards the applicant by this family and at least one occasion on which the applicant suffered physical harm by this family in this period.

9. The Tribunal is also persuaded that there was a reactivation of legal proceedings when the applicant returned to Bangladesh in 2007 and that there was further intimidation of the applicant and at least one occasion on which the applicant was physically harmed by this family as a result of the re-initiation of the proceedings.

10. The Tribunal is persuaded that if the applicant were to return to Bangladesh, he would wish to retake and occupy the land were it not for the fear that he has in the consequence of doing so from the family that took the land. In the Tribunal hearing, the applicant significantly prevaricated as to whether he would take the land. The Tribunal is not persuaded that he would do so due to his fear.

11. It was discussed with the applicant and his migration agent in the hearing that, in this context, the reason for the harm that could befall the applicant in taking steps to recover the land and occupy it becomes crucial. In consideration of the Refugee Convention criterion, the essential and significant reason for the harm becomes important. If the essential and significant reason for the harm is the applicant’s religion then case law indicates that the applicant will continue to meet the criteria even if he would not proceed with the steps that would cause the harm, namely action to recover the family land, because of the fear. If the applicant is at risk of being harmed as a consequence of an essential Convention attribute, his religion, if he were to take steps to recover the land, then the applicant will have a well‑founded fear of persecution, even if he does not take steps to recover the land because of his fear of harm.[7]

    [7] S395 v Minister Immigration and Multicultural Affairs [2002] HCA 71.

12. In contrast, if the essential and significant reason for the harm is not the applicant’s religion, but the commercial desire of the family that took the land to resist it being retaken, then case law, in terms of the Refugee Convention criterion, indicates that the applicant does not have a well‑founded fear of persecution, because the harm he fears (and is modifying his conduct to avoid) is not for the essential and significant reason of one or more Convention reasons.

1. In the hearing, the applicant vehemently maintains that religion was at the heart of the reason that he would face harm from this family that took the land. The applicant indicated that Buddhists are a significant minority and marginalised and taken advantage of. It is submitted that the weak position due to adherence to his religion is at the heart of why the applicant would be harmed if he returned and took action to recover the land.

2. The Tribunal provided an opportunity following the hearing to make submissions on this issue. The response in relevant part reads (footnotes omitted):

   PROTECTION UNDER REFUGEE CONVENTION

   6.The member raised concern about the nexus between the feared harm and convention grounds during the hearing as s91R of the Migration Act requires the Convention reason to be 'the essential and significant reason' for persecution.

   Convention Nexus

   7.We submit that [the applicant’s] Buddhist religion, as well as being a member of a particular group (the religious minority in Bangladesh), is the central and significant reason for his persecution that he has real fear for.

   8.In this case, the Buddhist religion of [the applicant] is the main cause for the [Neighbour A] family to persecute him. Also, being a Buddhist in Bangladesh is the main reason that he does not have access to the state protection. Collectively, [the applicant’s] Buddhist religion led him to his current position of being persecuted and subject to a real risk of harm in Bangladesh.

   9. It has been accepted by the High Court, l that in the context of Part IA(2) of the Convention, the relevant nexus can be satisfied by either the discriminatory motivation of the perpetrators of the harm or the discriminatory failure of state protection.

   The discriminatory motivation of the perpetrators of the harm

   10.We submit that the Buddhist religion of [the applicant’s] family is the key motivation for [Neighbour A’s] family to harm to kill [the applicant’s] father, grab his land and continue to harm [the applicant].

   11.[The applicant] has explained that he and his father was considered to be "non-believers" by the Muslims in Bangladesh for their Buddhist religion. He also claimed that because he does not have Muslim religion, he has been alleged blasphemy. we submit that [the applicant’s] experience with the [Neighbour A] family is a direct result of him being a Buddhist, in another word, a non-Muslim, and being a member of the religious minority group.

   12.Firstly, As [the applicant] has asserted, the Buddhist religion is the key motivation for the [Neighbour A] family to select [the applicant’s] family as their targets. It is inherent for the historic reason that the religious minority is more vulnerable to land grabbing. We also not that it has been reported that the minority community is 'disproportionally targeted for displacement from land they have claimed for generations.' Therefore, but for his Buddhist religion, [the applicant] would not need to suffer from previous harm.

   13.Secondly, the land grabbing and the following attacks on [the applicant] should be considered as a multi-faceted phenomenon exhibiting both of the personal interest and a persecutory conduct related to [the applicant’s] religion. The repeated attacks and ongoing attempts to find [the applicant] during the years are not proportionate with the purpose of just securing the illegally occupied land. As [the applicant] asserted, [Neighbour A’s] family hated him and his family and the attacks are to express anger over his 'blasphemy'.

   14.Thirdly, [the applicant] not only has Buddhist as religion but also has been a Buddhist priest, therefore he is more likely to be a victim of harm that relates to his religion. After Myanmar's operations against Rohingya Muslims, the hate against Buddhists among extreme Muslims is further stimulated. This leads to [the applicant’s] well‑founded fear for of harm upon removal to Bangladesh because of his religion.

3. Considering his submissions, the Tribunal considers, on balance, and in the circumstances of this case, that the applicant’s religion should be considered the essential and significant reason for the harm. The Tribunal agrees that the land grabbing here involved, as key motivations, both personal interest and very significantly religion. The Tribunal considers that the harm the applicant would face as a result of his desire to reclaim and occupy the land, for all intents and purposes, should be considered as being for the essential and significant reason of religion. The Tribunal considers that the harm that the applicant has a real chance of facing would involve intimidation and physical harassment, constituting serious harm.

4. The Tribunal considers the harm that the applicant would face would be systemic and discriminatory.

5. A relevant issue is whether it would be reasonable for the applicant to relocate to avoid the harm. Relevant submissions were provided on this issue after the hearing as follows:

   Relocation

   In [the applicant’s] claim and in his response in previous interviews and hearings, he made it clear that there is no safe place for him to hide in Bangladesh. His statutory declaration in 2014 suggests that despite his attempts to hide in [Village 2 variant] [and other locations] separately, the [Neighbour A] family was able to locate him and discover his hiding spots. In relation to the harm [the applicant] fears from [Neighbour A’s] family, we submit that relocation will not be reasonable given [the applicant’s] particular circumstances.

   The UNHCR has observed, relevant to personal factors in assessing the reasonableness of location, that:

   The personal circumstances of an individual should always be given due weight in assessing whether it would be unduly harsh and therefore unreasonable for the person to relocate in the proposed area ... In particular, lack of ethnic or other cultural ties may result in isolation of the individual and even discrimination in communities where close ties of this kind are a dominant feature of daily life.

   As the only district in Bangladesh that processes a significant Buddhist population, Chittagong (Chattogram) is too close to [the applicant’s] home area. However, in other locations, [the applicant] will even lack religious or cultural ties upon which to rely for support.

   Further, we note that [the applicant] has been a Buddhist priest before and this identity is known to the people of [Village 1]. There is a risk of violence against him throughout Bangladesh. The discrimination and risk [the applicant] will face as a former Buddhist priest is national wide. We submit that the cumulative effect of [the applicant’s] personal circumstances renders relocation to be impossible.

6. The Tribunal has credibility concerns with claims made by the applicant in the hearing that he relocated to multiple locations but the family tracked them down in those locations. However, the Tribunal does accept submissions that the relatively localised places in which Buddhists generally live in Bangladesh could make it reasonable to expect the applicant to have to relocate.

7. In any event, given that the Tribunal considers that the applicant has an intrinsic desire based on religious motivations to seek to reclaim the family land and occupy it, were it not for the fear of harm, the Tribunal considers on that basis it would not be reasonable to expect the applicant to relocate.

8. Given these findings, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Refugee Convention reason and therefore meets the protection criteria.

9. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

   DECISION

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

    David McCulloch
    Member