1823743 (Refugee)

1823743 (Refugee) [2020] AATA 793 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823743
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Paul Windsor
DATE:21 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 February 2020 at 2:14pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival at Ashmore Reef not an unauthorised maritime arrival – political opinion – low-level membership of opposition party – harassment at work and accusation of arson – religion – moderate Muslim in strict Muslim family – inter-faith relationship with Hindu woman opposed by woman’s brother – attacks and threats by brother and associates – woman’s pregnancy and miscarriage after assault – conversion to Hinduism in Bangladesh and Christianity in Australia – church activities for purpose of strengthening claim to be a refugee – physical and mental health – credibility – inconsistent, unsupported evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5J(6), 36, 57, 65, 66, 91WA(1), 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 July 2018 to refuse to grant the [applicant] a Protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], who claims to be a citizen of Bangladesh, applied for a Class XE Safe Haven Enterprise (subclass 790) visa (SHEV) on 8 February 2016. It is a requirement for the grant of this visa that the applicant satisfies a criterion mentioned in s.36(2)(a) or (aa) of the Act. These paragraphs set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations. Alternatively, the applicant may be granted a visa if they are a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant.
In his Protection visa application [the applicant] indicated he was born in [a] village in Jessore district, Bangladesh on [Date 1]. He indicated he is ethnic Bangladeshi, of the Muslim religion, speaks Bengali, and had married in [Town] Bangladesh (but did not provide a date of marriage). He indicated he departed Bangladesh illegally by boat from Chittagong in August 2012 and arrived in Australia as an unauthorised maritime arrival [in] November 2012, travelling via [Country 1] and [Country 2]. He stated his boat identification number is [number], indicating that he travelled to Australia on the boat code-named [Code Name].[1]
[1] See Doc ID [number] of Departmental file [number]
In a submission of 8 June 2018 it was claimed that [the applicant] fears that if he is returned to Bangladesh he will be detained, interrogated, tortured and/or killed by members of his family, his wife’s family, extremist Muslim groups, or the Bangladeshi government and its supporters because he was in an inter-faith relationship, converted to Hinduism and subsequently to Christianity, his political opinion, and the departmental ‘data breach’ in February 2014.[2] The delegate refused to grant the visa finding that she did not accept that [the applicant] was in an interfaith relationship and had been harmed by his partner’s family; that he was imprisoned for arson; or that his brother is a member of the Jamaat-e-Islami (JI) political party. While the delegate accepted [the applicant] is a low level supporter of the Bangladesh National Party (BNP); had converted to Christianity; departed Bangladesh illegally and his details were inadvertently disclosed on the Department’s website, the delegate found he would not face a real chance of persecution or a real risk of significant harm if he returned to Bangladesh.
[2] See Doc ID [number] of Departmental file [number]
In accordance with Part 7AA of the Act on 27 July 2018 the delegate’s decision was referred to the Immigration Assessment Authority (IAA) for review on the basis that it was a fast track reviewable decision (s.473CA of the Act).
On 13 August 2018 the applicant’s representative wrote to the Department seeking re-notification of the delegate’s decision in light of the Full Federal Court of Australia (FCAFC) outcome of 6 August 2018 in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.[3] In that matter the FCAFC declared that:
1. The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.
2. The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).
3. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016.
[3] See Doc ID [number] of Departmental file [number]
[The applicant] also lodged an application for review of the delegate’s decision with the Tribunal on 17 August 2018 (this case – 1823743). In light of the FCAFC decision in DDB16 this has been found to be a valid review application as [the applicant] was similarly affected, having travelled to Australia on the same boat ([Code name]) as the applicant in DBB16. [The applicant] did not provide the Tribunal with a copy of the delegate’s decision record.
On 25 March 2019 [the applicant] was re-notified of the delegate’s decision by the Department and advised that he had the right to seek review of the decision by the Tribunal.[4] On 28 March 2019 he lodged a further application with the Tribunal for review of the delegate’s decision of 24 July 2018 (case 1907464).
[4] See Doc ID [number] of Departmental file [number]
[The applicant] appeared before the Tribunal on 19 November and 5 December 2019 to give evidence and present arguments. The Tribunal hearings were 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. The representative attended the hearings.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant]’s initial claims for protection were set out in a supporting statement dated 8 February 2016 prepared with the assistance of the [Legal Service] and included with the Protection visa application.[5] His claims from this statement are summarised as follows:
[5] See Doc ID [number] of Departmental file [number]
·He fears that if he was forced to return to Bangladesh he would be seriously harmed by members of the Awami League (AL) and his girlfriend’s family because of his political opinion and his relationship with his girlfriend.
·He is a Bangladeshi and his religion is Islam.
·He married a Hindu woman named [Ms A] in a Hindu temple.
·He worked as a factory worker in a [warehouse] in Bangladesh.
·Since he was a child he has been involved with the BNP. He was involved in recruiting people to join the BNP. When some of his colleagues who were involved with the AL found out he was involved with the BNP, they did not like him. They would harass him. On occasions they would lock him in another building near his home so he could not go to work. They would make up problems at work and blame him, steal his salary and harass him in any way they could. They threatened to kill him. He filed a police report about the harassment but the police said they could not do anything. This was because he did not bribe them and they knew he was involved with the BNP.
·In January 2005 he met [Ms A] who often came to his work to visit her brother, [Mr B], who also worked there. He was very attracted to her. He had no issue with her being a Hindu as he had many Hindu friends. They began to speak on the phone and in June 2005 began a relationship. She began inviting him to meet with her in private near her Hindu temple.
·In December 2005 their relationship became a sexual relationship. She came to visit him in a room he had to himself. In June 2006 they found out she was pregnant. He told her he was happy to convert to Hinduism if necessary to marry her and they made plans to marry in July 2006. He told a friend about the pregnancy and this friend told [Mr B], who became very angry. [Mr B] began bullying him at work and encouraged others to bully him, using the reason that he was a member of the BNP. He was threatened that he would be killed and during lunch breaks they would often hit and beat him. The employers did not stop this as they were also AL members. AL members also began following him after work and harassing him.
·In July 2006 when he was travelling with [Ms A] to the local temple so they could marry they were intercepted by [Mr B] and his friends. He was dragged away, tied to a tree and hit with sticks. A local doctor helped him by bandaging his wounds.
·After this, [Mr B] and other AL members began physically assaulting [Ms A]. They would kick her in the stomach in order to cause her to lose the baby. In late July [Ms A] went to the medical clinic where she was told she had lost the baby.
·One day in October 2006 [Ms A] came to visit him at work. A colleague overheard him tell her to meet him that night at his home and informed [Mr B]. [Mr B] and others came to his home that night with hockey sticks and found [Ms A] and him in bed together. He was hit [and injured]. He could not afford to go to hospital but was assisted by the local doctor. It took him about two weeks to recover.
·In 2007 there was a very large fire in the factory where he worked which resulted in heavy losses for the company. He was not at work at the time the fire started and did not start it, but his colleagues told his boss that he had. His colleagues they came to where he lived saying they had orders from the boss to bring him in. One had a pistol and threatened to shoot him. He escaped to a slum alongside a train track but the police found him about 24 hours later.
·He was held at Jessore jail, about 30 km from [Town]. He appeared in court once. No witnesses were called. His lawyer said [Mr B] bribed the judge and police against him. The judge found him guilty and sentenced him to ten years in jail. He was released approximately one year later when he paid his lawyer approximately [amount] taka (approximately AUD[amount]) to get him released.[6]
·In June 2008, after he was released, he went to Khulna. He worked in a [shop] and lived in a room at the back. He called his brother-in-law who told him that in the same month [Mr B] had gone to his parents’ home to find him and had severely beaten-up his parents who had refused to say where he was, resulting in them sustaining broken limbs and head injuries and being hospitalised for about 10-12 days. He does not have any records of these events.
·After about three months in Khulna, [Mr B] and a large group of men came looking for him. He was out the back of the shop at the time. Fearing for his life, he left for Dhaka.
·In Dhaka he hid in a slum for about two years. He rarely left the room for fear he would be found. He knew that [Mr B] and his men had visited his family and were continuing to look for him. He did a bit of work for a [factory] in return for food. Because [Mr B] had continued to visit his family, they had become resentful towards him, blaming him for the pressure [Mr B] exerted on them. For these reasons he fled Bangladesh.
·Since arriving in Australia he has heard from his brother-in-law that [Mr B] and his friends raided his home and took all the things of value that his mother and sister owned. Since then, his family have been spurned by the rest of the villagers and turned away from the local mosque because he had been in a relationship with a Hindu girl. The community believes he has converted to Hinduism and said he would not be welcome back into the community if he returned.
·His brothers have been targeted by the same people and were forced to go into hiding and eventually had to escape to [Country 1].
·Wherever he went in Bangladesh, [Mr B] and his group would know within 24 hours because Bangladesh is a very small country and [Mr B] has connections all across the country.
·If he went back to Bangladesh he would continue to be targeted and harmed because he is still a member and supporter of the BNP and a Muslim who had a previous Hindu girlfriend.
·As he left illegally, the government will refuse to help him. His family will not protect him as they have become resentful towards him.
[6] 1AUD equates to 57 Bangladeshi taka at the current exchange rate, >
[The applicant] also included copies of a nationality certificate and his birth certificate (indicating he was born in [a] village on [Date 1]). He also included seven typed pages providing additional information regarding his convictions, charges, investigations or crimes committed (containing answers to Q4 and Q87 of Form 790); his family members; address history; travel history; and employment history. In response to Q4 and Q87 he indicated that his boss used to like him very much and made him labour leader at his work place but [Mr B], the brother of the Hindu girl he used to love, also worked there. He wrote that he worked there for 2-3 years and was involved in BNP politics. He stated they didn’t like it and [Mr B] told him that he could not stay in this work place and to stop doing what he was doing with his sister. He stated that [Mr B] lit the fire in the factory and framed him as the criminal. He indicated that the fire was in June 2007 and he was accused of lighting it and was sentenced to 10 years but appealed and got bail and was released in June 2008. He wrote that when his father went to the police about this the police withdrew the case in June 2008. [The applicant] submitted to the Department a copy of an English language translation of a claimed police First Information Report made at the [Town] Police Station in Jessore [in] April 2007, in relation to this matter.[7] [The applicant] also provided the Department with a copy of a ‘NO OBJECTION CERTIFICATE’ purportedly issued by the Officer-in-Charge of [a] Police Station in Jessore, Bangladesh [in] April 2014, certifying that he ‘found no criminal offence in this Police Station’.[8]
[7] See Doc ID [number] of Departmental file [number].
[8] See Doc ID [number] of Departmental file [number].
On 3 May 2016 [the applicant]’s then representative forwarded to the Department a further statement of the same date by [the applicant] seeking to clarify some of the information provided previously, noting that his application had been prepared with the assistance of [Legal service] volunteers and various phone interpreters. An attachment was included revising responses to part of the application form to clarify his family details, addresses, travel history, education and employment history.[9] Relevant additional matters raised in [the applicant]’s statement of 3 May 2016 are summarised as follows:
[9] See Doc ID [number] of Departmental file [number].
·Shortly after he arrived in Australia he participated in an Entry Interview. He was not made aware that the information he provided during this interview would be used for the purposes of assessing his claims for protection. He did not state at the Entry Interview that he was married because he married in secret and initially he did not tell any of his family. He confirms that he and [Ms A] are married. They married in a Hindu temple in [Location], [Town] in August 2006 when he was [age] and she was approximately [age] years old. Any references to [Ms A] should be as his wife. [Ms A] and he are still married and in a relationship. They could not live together because of the problems.
·His application also indicated at Part B Q 4 and Part C Q 87 that the police withdrew the case against him but he believes it was the court.
·He has had other jobs in Bangladesh as well as working in a [warehouse].
·When he was beaten in 2006, [Mr C], who is a friend in the village (culturally he refers to him as his brother-in-law) paid for his treatment, which included painkillers.
·After he was released from jail he went back to his village for approximately one week before going to Khulna where he stayed for approximately one month. When he went to Dhaka he did not work in return for food but did casual work wherever he could find it and was paid money for his work.
·He has tried to provide dates to the best of his ability but is largely uneducated and dates may be wrong as he tried to guess the months and is under a lot of mental pressure.
·While he was in jail he was assaulted, including sexually, by other inmates and treated like a dog. It was [Mr C] who spoke to the lawyer and was told it would take [amount] taka to get him out of jail. When this was paid he was released.
·After he was released he went back home. After a couple of days the factory owner found out he had been released and he was told to see him. The factory owner was very good friends with the local MP and a member of the AL. He was told to pay [amount] (AUD [amount]) otherwise he would go back to jail. Each of the four people charged with the crime had to pay this amount. He said his family was poor and could not afford this amount but said he would try to pay it. Shortly afterwards he went to Khulna.
·The data breach of 10 February 2014 gives rise to a sur place claim as there is a strong likelihood Bangladeshi authorities would be aware he has sought asylum in Australia. This may affect his safety and potential treatment by the authorities on his return to Bangladesh.

[The applicant] attended an interview with the delegate on 11 May 2016.[10] On 12 July 2016 the then representative made a post interview submission in support of the application. Relevant additional matters raised in this submission are summarised as follows:
·[The applicant] is now being extorted for money connected to the fire at his workplace. As the owner has links to a powerful AL MP [the applicant] fears he will not be able to receive state protection.
·His risk of harm is further exacerbated by his conversion from Islam to Hinduism. He has been disowned by his family and this further heightens his vulnerability and risk of harm if returned to Bangladesh.
·Country information is consistent with [the applicant]’s claims that those aligned with the BNP are at risk of persecution. Political affiliation is a critical survival tool in daily life in Bangladesh as party membership provides a social network, protection and identity. Political violence in Bangladesh is widespread and since the AL’s decisive victory in the 2008 general elections opposition party supporters have been at risk.
·Whilst the laws of Bangladesh aim to protect religious freedoms and ensure equal status and rights this is not the case in practice. Country information supports that those that convert from Islam are at risk of harm in Bangladesh.
·State protection is not available to [the applicant] in Bangladesh and he cannot escape from the problems he has experienced by relocating to another area.
·Because he departed Bangladesh illegally he would face detention and/or imprisonment on return and would face treatment that would constitute significant harm in the form of torture or cruel, degrading or inhumane treatment.
·While not all information regarding [the applicant]’s problems in Bangladesh was provided at the entry interview, he was not aware of the process at this time and the importance of comprehensively listing each event of persecution, and would not have been given the opportunity to expand at length about his claims. It is submitted he has been largely consistent in the information he has provided.
[10] See Doc ID [number] of Departmental file [number].
On 5 and 31 August 2016 the Department wrote to [the applicant] in accordance with s.57 of the Act inviting him to comment on adverse information relating to his application. This related to the English language copies of a nationality certificate and a birth certificate he had submitted and discrepancies in his name details, dates of birth provided and religion provided at different times.[11] Responses were received on 10 August and 5 September 2016.[12] It was confirmed that [the applicant] is a convert to Hinduism but claimed that he stated his religion as Islam on arrival for fear of being ostracized by the Bangladeshi community if he was perceived as having converted from Islam. Comment was provided regarding the identity documents submitted, indicating these were obtained by his father from the village chairman in response to a request by the Department and provided in the form of English translations and he believes them to be genuine, with errors on the documents the result of poor literacy levels at the chairman’s office. He explained that he stated at the entry interview that he was known as [alternative Name] as that is a traditional family title but his official name is [Name]. He confirmed his date of birth is [Date 1] as recorded in his birth certificate but acknowledges that when it was put to him at the entry interview that he was born in [another year] he responded in the affirmative. It is asserted he likely did this because he was nervous and did not focus on the date.
[11] See Doc IDs [numbers] of Departmental file [number].
[12] See Doc IDs [numbers] of Departmental file [number].
On 4 January 2017 a delegate of the Minister found that the birth and nationality certificates provided by [the applicant] were bogus and that he did not have a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship. The delegate found, therefore, that s.91WA(1) of the Act prevents the grant of a Protection visa in his case. The delegate also went on to make findings in relation to his identity and protection claims on the information available to her, finding that he is not owed protection.[13] [The applicant] was advised that there is no right of merits review for the decision because he had been found to be an excluded fast track review applicant.[14] Departmental records indicated that the matter was appealed to the Federal Circuit Court of Australia (FCCA) and resolved by consent [in] February 2018 when the Minister withdrew resulting in the decision being set aside and the matter being remitted to the Department for reconsideration ([file number]).[15]
[13] See Doc ID [number] of Departmental file [number].
[14] See Doc ID [number] of Departmental file [number].
[15] See Doc ID [number] of Departmental file [number].
The matter was allocated to a different delegate who held a further interview with [the applicant] on 29 May 2018. On 28 May 2018, the current representative provided an unsworn ‘statutory declaration’ from [the applicant].[16] Relevant additional matters from this statement are summarised as follows:
·He has converted to Christianity.
·In Hinduism there are many gods and every month there is a religious celebration. He did not like it.
·In 2016 Catholic fathers came to [Detention centre 1] and spoke about the message of God. It made him feel good. He started exploring the Christian faith, including with other Bengali detainees who would read the bibles written in Bengali with him. He also attended a Catholic bible study group.
·When he moved to [Detention centre 2] he roomed with two Christians who motivated him learn about Christianity. He got his own Bengali language bible. He met and spoke with a Catholic Father and Sister, and started attending mass and bible study. In July 2017 he was baptised as a Catholic.
·If he was returned to Bangladesh he would continue to attend church and try to find other Christians to pray with and talk with. He would like to encourage other people to follow Christianity and to have their hearts touched by Christianity like his was.
·He fears that if he is forced to return to Bangladesh he will be beaten, imprisoned or killed by the government, extremist Islamist groups, the Muslim community or his family because he has converted to Christianity. His family are strict Muslims who will not accept his conversion and will want to harm him.
·He has been in detention for almost six years now and has a lot of physical health issues – his [organs] are not functioning correctly and he has problems with his [body part 1]. He is overwhelmed with stress which affects his memory.
[16] See Doc ID [number] of Departmental file [number].
A copy of [the applicant]’s Record of Baptism, dated [July] 2017, and copies of letters of support from various Christian religious figures were also submitted.[17]
[17] See Doc IDs [numbers] of Departmental file [number].
On 8 June 2018 the representative made a further submission following the second Departmental interview. Relevant additional matters raised in this submission are summarised as follows:
·As the interviewing officer stated she accepted that the birth certificate submitted is genuine, it is assumed that the identity as claimed: [Name], date of birth [Date 1], has been accepted.
·While on the boat to Australia, [the applicant] was advised by a fellow Bengali man not to discuss his wife or conversion to Hinduism with anyone else on the boat or upon his arrival in Australia as this would cause significant problems for him amongst the Muslim Bengali community in Australia. This fear amounts to a reasonable explanation why he initially did not disclose his conversion or marriage or subsequent problems.
·As far as [the applicant] is aware, [Ms A] is currently living with her brother [Mr B]. He is unaware of whether she has come to further harm as he believes she would not inform him due to his fragile mental health. [Ms A]’s fear of her brother may be what causes her to remain in his home.
·[The applicant] would not only be targeted as a Christian convert, he would also be targeted due to his status as a member of a religious minority.
·The government does not adequately protect members and supporters of opposition political parties or Christians.
·[The applicant] is unable to relocate as he fears harm from the ruling AL party as well as extremist Muslim groups who are active throughout Bangladesh. His brother-in-law was able to locate him in Khulna causing him to flee Bangladesh. He has no family support as he has been ostracised by his family.
On 19 June 2018 the representative responded to a request from the Department dated 14 June 2018 that [the applicant] provide further information regarding his political activities and the harm he fears from his brother. The response indicates that [the applicant]’s elder brother [Mr D] became involved with JI while a student at the local madrassa and he became a member of the student wing. It is claimed that [the applicant] and his brother argued as his brother tried to convince him to join JI. It is claimed that [Mr D] has now become an Imam at the village mosque and has convinced his father to also become a member of JI. [The applicant] suspects family members have been informed of his conversion to Christianity by fellow detainees from the Bengali community. He believes his brother will not tolerate his conversion and will use his position to cause [the applicant] harm.
On 11 July 2018 the representative made a further submission to the Department in response to a s.57 Invitation to Comment regarding the relationship between the BNP and JI (that they are aligned). In response it was submitted that the alliance is political (in opposition to the ruling AL) and not ideological and that [the applicant] did not share his brother’s belief in the importance of Islam in Bengali politics (which was in accordance with his brother’s strict adherence to Islam).
On 3 January 2020 the representative made a post-hearing submission.[18] The submission included comment, legal argument and references to country information regarding issues raised at the hearings. Matters raised were physical and mental health issues; evidence given at the Entry Interview; inconsistencies between oral evidence at the hearing and evidence from the Protection visa application and initial statement; issues regarding the motivation of the factory owner and [Mr B]; involvement with the BNP; relationship with [Ms A]; the factory fire; and conversion to Christianity.
[18] See folios 53-59 of the Tribunal file.
On 16 January 2020 the representative provided a copy of a document titled ‘Health Summary Report for Commonwealth Ombudsman’ prepared by International Health and Medical Services (IHMS), the detention health services provider, in relation to [the applicant].[19]
[19] See folios 60-61 of the Tribunal file.
Findings and reasons
Identity
While the delegate has recorded [the applicant]’s date of birth in the decision record as being [Date 2] (the date he gave at the Entry interview) rather than [Date 1] (the date given in his Protection visa application and the birth certificate document issued [in] December 2012 and provided to the Department), it is not is dispute that he was born in Bangladesh and is a Bangladeshi citizen. The Tribunal finds that his precise date of birth is immaterial for the purposes of this assessment. Noting, however, DFAT advice indicating that the registration of births in Bangladesh has only become ‘increasingly widespread’ since 2004 and that people are still able to apply for birth certificates without any supporting documentation, the Tribunal considers that the date of [Date 1] should be accepted as the best available estimate of [the applicant]’s precise date of birth.[20] Like the delegate and as claimed by [the applicant], the Tribunal finds that [the applicant] was born in Bangladesh, and is a citizen of Bangladesh. Consequently, the Tribunal finds that Bangladesh is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Key Issues
[20] DFAT Country Information Report, Bangladesh, 22 August 2019,section 5.31.
The key issues in this review are whether [the applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm for one or more of the five reasons set out at s.5J(1)(a) of the Act if he was to return to Bangladesh; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that [the applicant] will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Vulnerability
The representative has commented that [the applicant] is a vulnerable applicant given his protracted detention, his limited education ([number] years of formal schooling), ongoing physical health issues and his experiences of torture and trauma in Bangladesh.
At the hearing the Tribunal asked [the applicant] whether he had taken any medication that day. He indicated he had not. When asked if he usually took any medication he indicated that he takes medication for sleeping problems every evening and takes Panadol for a problem with his [body part 1]. When queried about the issue with his [body part 1] he said his wife’s brother kicked him in the [body part 1]. The Tribunal queried [the applicant] that he had indicated that happened a long time ago and asked whether a doctor had ever recommended treatment such as surgery to fix the problem. He indicated that he had stayed in different detention centres and while he had hoped it would be fixed nothing had happened yet. At the resumed hearing [the applicant] also indicated he has a problem with [another area]. The Tribunal asked [the applicant] if he had had any medical reports regarding these issues. He subsequently provided the IHMS summary report of [April] 2019 which indicates that he had been diagnosed as having [details deleted]. The report indicated that he had returned normal blood and urine tests but was due to have [further] investigations [in] September 2019 (no updated results were provided to the Tribunal). Under mental health Issues it was noted that [the applicant] has a history of Torture and Trauma and it was noted that he has symptoms of ‘detention fatigue’ as he has been in detention for over six years.
The Tribunal accepts that [the applicant] has been in immigration detention since he arrived in Australia in November 2012 and notes the comment in the IHMS report that he is suffering signs of detention fatigue and that he has engaged with the health promotion and wellbeing groups. The Tribunal notes, however, that the only medication he is taking is a sleeping tablet at night and sometimes Panadol for pain he said was related to the problem with his [body part 1]. In this regard, the Tribunal notes that the IHMS report indicates that [the applicant] was diagnosed with a [condition] in his [body part 1] and blood and urine tests returned normal findings. The website WebMD indicates that [these conditions] are [common].[21] There is no suggestion that [these conditions] are related to physical trauma to the [body part 1]. [The applicant] confirmed at the start of the initial and resumed hearings that he had not taken any medication that day and, while the Tribunal indicated to him at both hearings that the Tribunal was happy for him to request a break at any time during the hearing if he felt he needed one, [The applicant] did not seek breaks during the hearings due to being distressed by the questions he was asked. The Tribunal is satisfied that [the applicant]’s ability to present his case at the hearings was not adversely affected by the above factors.
Credibility
[21] [Detail deleted]
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
For the reasons set out below the Tribunal found [the applicant]’s evidence generally to be vague, lacking in detail, unsupported by independent corroborating evidence, inconsistent and unconvincing. The Tribunal did not find the key elements of his claims to be credible and finds that he has concocted these claims to support his case for protection.
In reaching these conclusions the Tribunal has given weight to inconsistencies between evidence in [the applicant]’s Protection visa application and initial statement of claims and other evidence. In doing this the Tribunal has been mindful of the comments by his representatives that the initial statement was prepared in a short time period with the assistance of [Legal service] volunteers and various phone interpreters and may contain errors and omissions. The Tribunal accepts there may be some errors and omissions in detail, and notes the various formatting errors in the document as indicative of the time pressures under which it was produced. However, noting that [Legal service] volunteers are people who have experience in providing legal assistance to asylum seekers and that [the applicant] signed the statement indicating that it had been read back to him by an interpreter and he agreed with its contents, the Tribunal considers it is appropriate to view this document as reflecting [the applicant]’s personal account of his circumstances and fears if he was to be returned to Bangladesh.
Assessment of claims
Background

At the hearing [the applicant] indicated that he came from a Muslim family in Bangladesh (in his statement of 28 May 2018 he described them as strict Muslims) and has [siblings] who remain living in Bangladesh. He said all his siblings are married and his brothers remain living in his home [village] while his sisters have gone to live with their husbands. While he indicated at Q. 45 of his Protection visa application that he speaks with his father by telephone about once a month he said he is no longer in contact with his family. When asked, he indicated that he last had contact with them when he arrived in Australia in November 2012 but stopped after that time. The Tribunal finds this statement is inconsistent both with the comment in his application (lodged 8 February 2016) that he speaks with his father monthly and with the birth and nationality certificates, both dated [December] 2012 (which he indicated his father had obtained on his behalf) and the ‘No Objection’ police certificate, dated [April] 2014, that he submitted to the Department. The Tribunal considers this indicates [the applicant] was not estranged from his family when he lodged the application in February 2016.
Noting that in his initial statement he indicated that his brothers had gone into hiding and then escaped to [Country 1] the Tribunal asked if [the applicant] if he had any brothers in [Country 1]. He said they used to be in [Country 1] but had all returned to Bangladesh now. He said he could not recall exactly when they returned. When asked he said they went to [Country 1] because of some political problems and because of his problems. The Tribunal finds this statement is inconsistent with [the applicant]’s more recent claims regarding his elder brother becoming Imam of the village mosque and the local head of JI, which is discussed further below.
Claimed involvement with the BNP
At the hearing [the applicant] said he became involved with the BNP in 2003 when the then Chairperson of the BNP, Khaleda Zia, visited their area (the BNP was in power and she was the Prime Minister of Bangladesh at the time).[22] He said he went along with others to meet her. He could not say approximately how old he was at the time, commenting that in Bangladesh people don’t worry about how old they are (if this occurred in 2003 he would have been [number] years of age at the time). He commented that it was his dream to meet her because the BNP was the only party in Bangladesh that is with the people and makes things better for them. When asked why he thought that was the case he replied that when Khaleda Zia came to power in 2001 he saw her helping the people and her love for the general public. When asked for examples he commented that she established a hospital and a school in their village, built a road in the village and always stayed with poor people.
[22] Khaleda Zia, Prime Minister of Bangladesh, >
[The applicant] indicated that he joined the BNP after that but the AL people tried to force him to join their party. The Tribunal asked him what he had to do to become a member of the BNP. He said he had to get their trust with his activities by showing he would not share party information with any other parties. He indicated he did not have to pay any fee to join and did not get a membership card. When asked what sort of things he did for the BNP [the applicant] said he was responsible for encouraging other people to join. He also said they gave him a motorbike and he had to travel to other areas to resolve problems if there was any fighting. When asked to elaborate he said whenever one party organised a gathering the other party caused problems by attacking them with sticks or bricks. He said his group was responsible for restraining people from the other group and providing medical assistance to anyone who was hurt. He indicated he started in this role once he had achieved the party’s trust. When asked what he did to achieve their trust [the applicant] commented that he kept what they said to him secret, stayed with them always, followed what they told him to do and respected them. When asked how many BNP members there were in his village, [the applicant] did not say how many members there were but commented that his village is small and most of the people there were engaged with the AL, and some were also with JI.
The Tribunal asked [the applicant] how he was harassed by AL people. He replied that they threatened him not to go with the BNP otherwise they would hit him or kill him. When asked if there was anything else they did to him he said sometimes they would hold his hands and he would have to get himself released from those kinds of attacks. When asked how often this happened he did not answer the question but commented that sometimes they threatened to harm his family. He said he told them they can do whatever they want to him but he will continue to support the BNP. When asked what they did in response, he said they were astonished then became very angry, but said to him they would not do anything now but in the future they would do something to him if they could. While the Tribunal accepts that [the applicant] may have been impressed by then Prime Minister Khaleda Zia when she visited his village and may have decided to support the BNP, the Tribunal found his account of his involvement with the BNP to be vague and unconvincing. He did not appear to be able to say how many members there were in his village, something that he might be expected to know if one of his responsibilities was recruiting new members. His comment that he was threatened that he would be hit or killed or his family harmed if he continued to support the BNP but no action was taken against him when he refused to comply (other than a vague threat that they would do something to him in the future if they could) was particularly unconvincing, especially given his comments indicating that most of the people in his village were pro-AL and that both groups readily resorted to violence (attacking each other’s member with sticks and bricks).
Noting that in his initial statement (at paragraph 9) [the applicant] said he filed a police report about harassment from AL supporters, the Tribunal asked him if he ever went to the police about the harassment. Contrary to his written statement he indicated that he did not go to police but said he told his senior party people. When queried that he had mentioned other harassment in his first statement such as being locked up on multiple occasions so he could not go to work, [the applicant] said that only related to problems at his work. The Tribunal commented that he had also indicated that AL members would make up problems at work and blame him and would steal his salary and harass him in any way they could. The Tribunal considers that if these things had happened as claimed, and if [the applicant] had filed a police report as claimed, he would have mentioned them when asked if there were others things that happened to him due to his supporting the BNP.
[The applicant] indicated that there were two groups at his work, one that supported the AL and another that supported the BNP. When asked what happened at work between members of these two groups [the applicant] said the owner of the factory, who he indicated was an AL member and supporter, was a very bad person who had contact with bad people. He said there were approximately 100 employees at the factory and whenever someone got sick or was injured in an accident, the owner did not do anything to assist. Contrary to the statement included with his application (in response to Q4 and Q87) which indicated that his boss used to like him very much and made him the labour leader at his work place, [the applicant] indicated that he and others formed a group to solve these problems and informed the owner and the management and that is why they became angry. The Tribunal found that the inconsistency in these statements undermined the credibility of this claim.
Noting the claim by the former representative that political affiliation is a critical survival tool in Bangladesh (and by implication is important in securing employment), the Tribunal asked [the applicant] why the owner, as an AL supporter, would employ BNP supporters. He indicated the owner did not ask about their political affiliation before he hired people. The Tribunal considers that if the factory owner was an AL member and supporter with close links to a local AL MP as claimed, he would likely have wanted to ensure that he was providing employment for people who were supporting the AL.
The Tribunal asked [the applicant] whether he ever got on well with his boss. He replied that his boss used to organise everything through [Mr B] and initially he had a good relationship with [Mr B] who told the boss he was a good person who knew how all the machines worked. He indicated that at first they did not know that he was involved with BNP politics but when they came to know they started hating him. As noted above, the Tribunal finds it unlikely that the AL affiliated boss would have hired BNP supporters in the first place. The Tribunal asked [the applicant] why, when they found out he was involved with BNP politics, they didn’t just sack him, commenting that Bangladesh does not have strong labour laws (DFAT indicates that 80-90 per cent of people work in the informal sector and that conditions and regulation are poor),[23] and that if they started hating him when they found out he was a BNP supporter they could have easily told him he could not work there anymore. The Tribunal reminded [the applicant] that in the response to Questions 4 and 87 in his application, as well as stating ‘they’ didn’t like that he was involved in BNP politics, he indicated that [Mr B] told him he could not stay in that work place. [The applicant] commented that he was in a good position and knew a lot about the job, there were some good people who liked and supported him and if they sacked him they would lose two or three other people who were with him. He added that they also kept him because they did not give him any salary and sometimes when they gave him salary they took it from him so he used to work for free. The Tribunal asked [the applicant] why he would work there for free. He said because he loved that place and [Mr B]’s sister used to come there. The Tribunal found this explanation entirely unconvincing. The Tribunal considers that if [the applicant] was involved in BNP politics as claimed and his boss (the factory owner) and [Mr B] hated him when they found this out, they would have dismissed him. [The applicant] indicated that 100 people were employed at the factory. The Tribunal does not accept that the owner and [Mr B] would have hesitated to fire him because he knew a lot about the job and two or three other people among the 100 employees would also leave. Furthermore, the Tribunal does not accept that they would have retained [the applicant] but not paid him or deducted a significant proportion of his salary, and arranged for him to be harassed in the manner claimed in his statement: being locked in another building so he could not come to work; being bullied and blamed for problems at work; being hit and beaten during his lunch break; being followed and harassed after work; and being threatened that he would be killed. The Tribunal also finds it implausible that [the applicant] would continue to work there under such intolerable circumstances because he loved the place and/or because [Mr B]’s sister sometimes came there.
[23] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 2.10-2.11)
The Tribunal concludes that while [the applicant] may have been a low level supporter of the AL, there is nothing in his evidence to indicate or suggest that he was actively involved in BNP politics. The Tribunal finds he has concocted this claim. The Tribunal considers this conclusion is supported by the lack of any evidence put forward to indicate or suggest that [the applicant] continued any involvement with the BNP or sought any assistance from the BNP during the four years he claims to have spent in Dhaka from 2008 until 2012. The Tribunal concludes that [the applicant] would not be involved with the BNP if he returned to Bangladesh and therefore finds that he would not be at any risk of harm on this basis.
Claimed interfaith relationship/marriage to a Hindu woman
[The applicant] claims that in 2005 and 2006 he had a relationship with a Hindu woman, [Ms A]; that he converted from Islam to Hinduism; married Ms [A]; and that he is still in a relationship with her and remains in contact with her. When asked at the hearing he stated he last spoke with Ms [A] the previous evening. Along with his claimed association with the BNP, [the applicant] claims that his relationship with Ms [A] was the reason for the problems he claims he suffered in Bangladesh, because he worked with her brother, [Mr B], who was an influential figure at his workplace, was an AL supporter, and did not approve of [the applicant]’s relationship with his sister. The Tribunal has concluded above that [the applicant] was not politically active on behalf of the BNP. For the reasons set out below, the Tribunal also found [the applicant]’s account of his claimed relationship with Ms [A] unconvincing, and does not accept that he ever was or is in a relationship with her or that he converted to Hinduism.
At the hearing the Tribunal queried [the applicant], in accordance with the requirements of s.424AA of the Act, why he didn’t mention at his Entry Interview with the Department on 5 December 2012 that he was married, that he converted to Hinduism and suffered problems in Bangladesh because it was an interfaith marriage with a Hindu woman, but stated that his religion is Islam and he was not married. The Tribunal commented that it would have been explained to him that the Entry Interview was his opportunity to provide any reasons why he should not be removed from Australia, that if he gave different information at any future interview that could raise doubts about the reliability of what he had said, and that the Department is careful to protect the privacy of all the information given by him. [The applicant] said he came to Australia on a boat which had [number] people on it and he was the only Hindu. He said he was fearful to tell them that he had converted because they might harm him. The Tribunal commented that it could understand why he might not want to tell his fellow boat passengers, but asked why he had not mentioned it to the Department, when the information is confidential and it is important to him being able to stay in Australia. He commented that at the Entry Interview he just answered according to what he was asked about. When queried that he was asked and answered questions indicating that he was a Muslim and was not married, he said in Bangladesh if a person converts people do not like it. He added that he thought if he told them he had converted and married a Hindu girl no one would allow him to be their room-mate.
In oral submissions at the end of the resumed hearing, the representative indicated that it is not clear from the written record of the Entry Interview that the ‘Important Information’ section of the Entry Interview form was read to [the applicant]. It has subsequently been confirmed that this information was not read to [the applicant]. Accordingly, the Tribunal has not given weight to the information from the Entry Interview in considering this particular issue.
While [the applicant] claims to have been in a relationship with Ms [A] since December 2005 and to have married her in 2006, he has not provided any independent evidence of their relationship. He has not provided any photographs of them together or any letters or other evidence of their relationship over the history of his application. When queried about this at the hearing he indicated that sometimes she uses bad words when she talks to him and she doesn’t write to him because she is illiterate. When asked if he brought a photograph of her to Australia he indicated he didn’t. He indicated that they did not have any photographs from their marriage because they did not have any money to buy a camera or a camera phone at the time. While the Tribunal accepts that these things are possible, the Tribunal considers that if [the applicant] had been in a relationship with Ms [A] since 2005, married her in 2006 and was still in regular contact with her he would have obtained some evidence of their relationship over that 15 year period, such as a recorded phone message or statement prepared with the assistance of a trusted third party and would likely have obtained and brought with him to Australia a photograph of her obtained at some time before his departure from Bangladesh in 2012 (or sent by her subsequently), even if Ms [A] was living with her brother under duress as claimed, noting that [the applicant] has not indicated that this has prevented them from remaining in contact with each other and viewing their relationship as ongoing.
The Tribunal also found the descriptions of the evolution of their relationship to be inconsistent and improbable. In his initial statement [the applicant] indicated that they met at his workplace in January 2005, began a relationship around June 2005 when she began inviting him to meet with her ‘in private’ near her Hindu temple, began a sexual relationship in December 2005 in a room he had to himself near his workplace, and made plans to marry in July 2006 after they found out in June 2006 that Ms [A] was pregnant. Despite indicating in his statement of 3 May 2016 that they married in secret, he indicated that he told a friend about the pregnancy who told Ms [A]’s brother [Mr B], who then began bullying him at work and encouraging others to bully him. [The applicant] stated that in July 2006 when he was travelling with Ms [A] to the temple to be married, they were intercepted by [Mr B] and his friends and he was dragged away, tied to a tree and beaten with sticks, suggesting that they were prevented from marrying (at least at this time). He stated that after this Ms [A] was physically assaulted by her brother and others causing her to lose their unborn child. Notwithstanding these terrible events, [the applicant] states that in October 2006 Ms [A] came to his workplace (where [Mr B] also worked) and they arranged to meet that night but a colleague overheard their discussion and informed [Mr B], resulting in [Mr B] and a group of others armed with hockey sticks finding them in bed together that night whereupon [the applicant] was hit [and injured].
In considering [the applicant]’s claim to have been able to conduct the relationship without people becoming aware of it the Tribunal notes that the DFAT Country Information Report indicates that, with an estimated 163.2 million people, Bangladesh is one of the most densely populated countries on earth (1,265 people per square kilometre), around 89 per cent of whom are Muslim and 10 per cent of whom are Hindu.[24] Given this, the Tribunal does not accept that [the applicant] and Ms [A] could meet privately and in secret at or near a Hindu temple and considers their relationship would quickly have become known and the subject of gossip. In this context the Tribunal asked [the applicant] if a lot of people attended the temple. He indicated that a lot of people attended on Saturdays. He commented that he would sit with Ms [A] inside the temple so no one would suspect anything about their relationship. The Tribunal asked him wouldn’t other people have seen them and thought it unusual that a Muslim man was with a Hindu girl in the temple. He replied that in Bangladesh no one suspects any one attending the temple whether they are Muslim or Hindu. The Tribunal commented that, contrary to what was written in his statement, it did not sound like a very private place. He replied that she used to ask him to meet her there on Saturday and the temple is an open area and is God’s place. The Tribunal found this explanation unconvincing and does not accept that in an overwhelmingly Muslim country it would not be considered unusual for a Muslim man and a Hindu girl to meet together at a Hindu temple. The Tribunal considers that such a relationship would have become known and a talking point.
[24] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 2.5 and 3.27.

The Tribunal found that [the applicant]’s account of the claimed relationship at the hearing differed materially from what was outlined in his statement. At the hearing [the applicant] indicated that initially he had a good relationship with Ms [A]’s brother, [Mr B], and whenever Ms [A] came to visit her brother he would introduce her to [the applicant]. He said they eventually became friends and would meet at her temple. The Tribunal commented that his statement indicates that the relationship became a sexual one in December 2005. He confirmed this was the case and indicated that he had a room in a small container located nearby his workplace where they met. When asked what happened next, [the applicant] said he used to call her sometimes and they had sex. However, rather than referring to her becoming pregnant in June 2005 and [Mr B] becoming aware of this, them deciding to marry in July 2006 but [Mr B] and a group of friends intercepting them on the way to the temple, he said one day they were having sex and her brother came to his room and caught them. The Tribunal asked when this happened. He said he could not remember the date. The Tribunal asked what happened when [Mr B] caught them. [The applicant] said her brother beat both of them. When prompted to continue he did still did not refer to his claimed marriage or conversion but commented that [Mr B] became very, very angry about him. The Tribunal found the vagueness of [the applicant]’s evidence and the inconsistency between his written statement and oral description of the relationship at the hearing undermined the credibility of his claim to have ever been in a relationship with Ms [A].
The Tribunal asked [the applicant] when he married and when he converted to Hinduism. He indicated it was sometime in 2006. The Tribunal read the key dates from his statement and asked what happened after they began a sexual relationship in December 2005: when did they marry and when did he convert. [The applicant] did not answer the question but said Ms [A] did not realise that he would convert to Hinduism and she got pregnant. The Tribunal put to him that in his statement he said after he found out she was pregnant he decided he wanted to marry her and told her he was happy to convert to Hinduism if that was required in order to marry her. He replied ‘yes’. The Tribunal queried [the applicant] that he just said she did not realise he would convert. He replied that she did not realise that a Muslim boy would convert to Hinduism to be her husband. The Tribunal queried why that was the case if he had told her he would convert. He indicated that initially she thought he was just talking. The Tribunal again asked when he converted. Contrary to his written statement he said it was August 2006 and he married her the same month after he converted. The Tribunal found [the applicant]’s evidence in relation to this matter to be evasive, vague and confused.
The Tribunal sought to clarify whether [the applicant] and Mr [A] were intercepted on the way to the temple to be married as claimed in the written statement and asked when it was that [Mr B] caught them and beat them. [The applicant] said it was when [Mr B] came to know that his sister got pregnant to him. He did not state that it was when they were on the way to the temple to marry but simply stated [Mr B] became angry. The Tribunal commented that in his statement he indicated that he and Ms [A] found she was pregnant in June 2006 and they made plans to marry in July 2006, however, (and contrary to the notion that the relationship was conducted in private or was secret) he told a friend That Ms [A] was pregnant who told [Mr B]. [The applicant] commented ‘yes’. The Tribunal put to [the applicant] that in his initial statement he indicated that they were intercepted by [Mr B] and his friends on their way to be married in July 2006 and he was dragged away and tied to a tree and hit with sticks. He replied ‘yes’ but added that the incident occurred after they had got married and were returning home. The Tribunal put to [the applicant] that his statement does not indicate that they were intercepted after they had married and commented that he had said earlier in the hearing that they married in August 2006. The Tribunal also put to him that in his statement he indicated that after they were intercepted by [Mr B], [Mr B] and others began physically assaulting [Ms A] to cause her to miscarry, that members of the Hindu community said the baby was going to be born out of wedlock and therefore was not going to be legitimate or welcome within the community, and in late July [Ms A] became very sick and lost the baby. The Tribunal commented that the statement doesn’t indicate that he actually got married, or that he converted to Hinduism. [The applicant] replied that he married Ms [A] because of the pregnancy. The Tribunal found [the applicant]’s response unconvincing given the discrepancies in his written statement and his oral evidence at the hearing. The Tribunal notes that his initial statement also indicates that the Hindu community was both aware of the pregnancy and considered that the baby would be illegitimate because it was born out of wedlock, that is, because they had never married.
The Tribunal asked [the applicant] how he and Ms [A] were able to get married once her brother knew about the relationship. He said they married at the temple where [Ms A] used to pray. The Tribunal queried why the Hindu priest would have married them if [Mr B], who he has indicated is an influential person, was opposed to the relationship. He said sometimes a new priest comes so they married when a new priest came. Noting that Bangladesh is a conservative society where ‘longstanding societal, cultural and religious attitudes’ continue to place restrictions on the extent of women’s participation in society,[25] the Tribunal put to [the applicant] that it might be expected the new priest would have asked where their families were, what their background are and whether their families consent to the marriage. He said the priest did not ask anything. The Tribunal considers this improbable given the socially conservative nature of Bangladeshi society (and noting that [the applicant] indicated [Ms A] was only [age] years old at the time), the restrictions placed on women, and the reference in his statement discussed above indicating that members of the Hindu community were aware of the pregnancy and were commenting that the baby was going be born out of wedlock and would not be welcome in the community.
[25] DFAT Country Information Report, Bangladesh, 22 August 2019, section 3.118.
The Tribunal also asked [the applicant] if he and Ms [A] ever lived together, including when he went to Dhaka. He indicated that they did not because they were beaten. The Tribunal asked why they did not elope so they could have a life together as man and wife. He said they did not have anywhere at that time to run away to. The Tribunal also finds it improbable that [the applicant] and Ms [A], if in an interfaith relationship without the knowledge and consent of their families and planning to marry in secret because Ms [A] had fallen pregnant, would not have sought to elope so they might have a chance of living together as husband and wife.
The Tribunal further queried [the applicant] that he had indicated that subsequently, one day in October 2006, Ms [A] came to visit him at work. He replied ‘yes’. The Tribunal asked why she would do this after all he claims they had been through, given people at his workplace would observe this and that it would surely provoke a response from her brother who he stated had badly beaten him and had [Ms A] beaten to the point where she had lost their child. He replied that she came because of love and to meet her brother as well. The Tribunal found this explanation highly improbable and asked why Ms [A] would want to meet her brother when he had arranged for people to beat her so that she lost their child. He replied that she came there because she wanted to know about his condition after he had been beaten. The Tribunal also found this explanation highly improbable, noting that [the applicant] indicated in his statement that they used to talk on the phone so she could have called him discreetly to inquire about his condition.
The Tribunal also queried [the applicant] that his statement indicates that he told Ms [A] to come to his home that night, but the conversation was overheard and they were found in bed together by [Mr B] and a group of men carrying hockey sticks and he was assaulted, including being hit [and injured]. He replied ‘yes’. The Tribunal commented that he said it took him about two weeks to recover but he indicated he then returned to work, and then referred to the next significant incident being the fire in the factory in 2007. The Tribunal put to [the applicant] that it finds it very hard to see how, after an incident like what he claims happened in October 2006 and everything he said preceded that incident, he would just be back at work continuing to do what he had been doing before. The Tribunal asked him what happened with him and [Ms A] and their relationship after this incident. He replied that they had a relationship and that relationship will last forever. The Tribunal asked how that could be the case and how he could have continued working with her brother if he was badly beaten up twice, was being harassed at work and if Ms [A] had been beaten causing her to lose their child. The Tribunal commented that it would seem impossible for them to have had a relationship as a husband and wife and also impossible for him to continue working at the factory. [The applicant] replied that in Bangladesh when a Hindu girl marries she never has another relationship before she is divorced from her husband, so she continues the relationship with her husband. The Tribunal commented that it does not understand why he would have kept working at the factory rather than them trying to move away somewhere where they might be able to live as husband and wife. [The applicant] replied that he did not bother about what [Mr B] did to them and said he was trying to continue a relationship because they love each other. While the representative has criticised the Tribunal’s use of the word ‘impossible’ in this context, what the Tribunal was seeking to convey was that it considers that it would have been intolerable for [the applicant] to have continued working with [Mr B] at the factory in the claimed circumstances. The Tribunal considers it highly improbable that he did so.
The Tribunal also considers it highly improbable that [Mr B] would have tolerated [the applicant]’s continued presence at the factory (because of the claimed relationship with [Mr B]’s sister, in addition to [the applicant]’s claimed BNP political activities). In this context the Tribunal asked [the applicant] why he would have been allowed to continue to work at the factory after [Mr B] found out he was having a sexual relationship with his sister. [The applicant] indicated that [Mr B] allowed him to continue working there because he could not tell anyone about this relationship because it would become his ‘personal problem’ if he mentioned it and because it was revenge against [the applicant]. The Tribunal finds this explanation unconvincing because it suggests [the applicant]’s claimed relationship with Ms [A] was not widely known about but, as indicated above, the Tribunal does not accept this would have been the case. [The applicant] indicated in his statement that members of the local Hindu community were aware of Ms [A]’s pregnancy; that [the applicant] told a ‘friend’ about the pregnancy who did not keep it secret but passed the information on to [Mr B]; that a work colleague overheard him speaking with Ms [A] and told [Mr B] that he and Ms [A] were planning to meet in October 2006; and claimed that third parties ([Mr B]’s men) were involved in beating him and Ms [A]. The Tribunal considers that in these circumstances the claimed relationship would be widely known and the subject of gossip. As put to [the applicant], it would seem that [Mr B] could solve his problem by having [the applicant] dismissed from work and telling him to leave the area. [The applicant] commented that he found out later what [Mr B] was thinking, implying that [Mr B] was going to frame him for the factory fire. As discussed below, the Tribunal does not accept that [the applicant] was framed for starting a factory fire.
The Tribunal asked [the applicant] when his family found out about his relationship with [Ms A]. He said when he came to Australia they knew about it. When queried whether he was saying they did not know about it while he was in Bangladesh he indicated that he did not think so. For the reasons set out above, the Tribunal considers this improbable given [the applicant]’s statement claiming the relationship was known to members of the Hindu community in 2006 (In this regard, the Tribunal notes that while [the applicant] was living in [Town] away from his home village, both are in Jessore district). The Tribunal queried [the applicant] that his statement indicates that in 2008, when he was in Khulna, [Mr B] and his men beat his parents severely because they refused to tell [Mr B] where he was, and received broken limbs and head injuries and were hospitalised for 10-12 days. He replied that he can’t remember that. The Tribunal found it very surprising that he would not immediately recall such a significant incident and queried [the applicant] that he can’t remember that his parents were so badly beaten that they received broken limbs and head injuries and were in hospital for 10-12 days. He replied ‘no’ and again indicated he could not remember such an incident. The Tribunal commented further that it raised the issue because it would seem that if it had happened [Mr B] would have told his parents why he was looking for him. [The applicant] did not respond further.
At the start of the resumed hearing on 5 December 2019 the representative stated that [the applicant] had accidentally provided an incorrect answer when he said he could not remember this claimed incident because he was very nervous, and that he could now provide further information about this. The Tribunal has significant concerns about this, noting that this question was asked almost two hours into the first hearing after [the applicant] had answered many questions, it is a significant incident, and he was prompted about the incident a number of times. He also did not appear to be nervous at the time. At the resumed hearing [the applicant] indicated that these people did not tell his parents why they were looking for him, they just asked where he was and when his parents said they did not know, started beating them up. He said people helped take his parents to hospital where they were treated for bleeding from their heads. He indicated their heads were bandaged, they were given some medicines and spent almost two weeks in hospital. The Tribunal asked why his parents were in hospital for so long. [The applicant] said the beating was so painful they couldn’t move. The Tribunal commented that in his statement he indicated they also suffered broken limbs but he had not mentioned that just now. He said they broke his parents’ limbs and their pain was so severe and was not curable and they couldn’t move. The Tribunal asked if the police got involved given it was such a vicious assault for no apparent reason. [The applicant] indicated the police did not get involved, commenting that in Bangladesh they are scared of the police because they always carry on a conspiracy towards the general people. The Tribunal asked [the applicant] why he thought [Mr B] and his people were so violent towards his parents, he commented that it was because all his family were affiliated with JI and because he misbehaved with [Mr B]’s sister. Given [the applicant]’s failure to spontaneously recall this significant incident, his failure to spontaneously indicate his parents suffered broken limbs, the lack of any supporting medical records, the improbability that [Mr B] would not tell [the applicant]’s parents why he was looking for him but would just start severely beating them, and the improbability that police would not be involved at all when his parents were brought to a hospital with severe injuries, the Tribunal finds that [the applicant] concocted this claimed incident.
Considering all of the foregoing cumulatively, the Tribunal concludes that [the applicant] has never been in a relationship with Ms [A]. The Tribunal considers that he concocted his claims to have had a relationship with her, to have converted to Hinduism to marry her, to have been beaten by her brother and his associates and to still be in a relationship with her. The Tribunal also considers, therefore, that [the applicant] has concocted his claims that [Mr B] continues to visit his parents and that [Mr B] and his men raided the family home and took all the things of value that his mother and sister owned. Given the above findings, the Tribunal does not accept that [the applicant] faces a real chance of serious harm or a real risk of significant harm from anyone because he converted from Islam to Hinduism or because he was or is in an interfaith relationship with a Hindu girl.
Claimed fire at [Workplace]
The Tribunal queried [the applicant] about the claimed fire in 2007 at [his workplace] which he claims he was accused of lighting. [The applicant] had submitted to the Department a claimed FIR prepared [in] April 2007 indicating that he was among four persons accused by the owner, Mr [E] of lighting the fire [in] April 2007 at the ‘Godown’ beside the business. The FIR narrative proved by [Mr E] indicates that [the applicant] and three others entered the godown and set fire to it with petrol intentionally to damage his financial solvency, causing nearly [amount] taka damage (approximately AUD[amount]). While the FIR states the date and time of occurrence as 12:00 pm [in] April 2007 [Mr E]’s narrative indicates that the night guard was on duty, strongly suggesting the fire was lit at midnight rather than midday (12 pm). It indicates that the night guard was afraid to confront the accused persons so ‘did not crowed’ or ‘disclose about the meter (sic) to anybody on the date of the occurrence’, again strongly suggesting that the fire occurred at midnight rather than in the middle of a workday when the 100 employees of the firm would have been present and noticed the fire.
Despite providing the FIR which stated the fire occurred [in] April 2007 ([the applicant] said his brother-in-law has a lawyer and that lawyer provided the FIR) [the applicant] said he could not remember the month in which the fire occurred. When asked at what time of the day it broke out he said it was afternoon. When asked why he was not there at the time he said he had a coffee break and was outside the factory. When asked how the fire started he said he wasn’t present but after his coffee break he went back to the factory and saw the factory on fire. Given this account, the Tribunal asked him why he was suspected of involvement in the fire. He said [Mr B] and some of his people told the boss he was responsible so the boss asked them to bring [the applicant] to him. [The applicant] said he ran away and went to his room (in the container) near the workplace. He said the factory was still on fire at the time and [Mr B] and his people were looking for him so he hid in the slum next to the railway station but somehow [Mr B] and his men found him and gave him to the police. The Tribunal asked about the extent of the damage to the factory. [The applicant] said it was badly damaged and there was a lot of loss. He indicated there was a lot of [items] which were imported from [another country] and sold to other factories. He indicated the other accused were also caught and convicted. He said he was convicted because [Mr B] and his people presented evidence against him that he set the fire because [Mr B] wanted to ruin his life due to his relationship with [Mr B]’s sister (Ms [A]). [The applicant] said he did not know anything about how the fire actually started because he was not present. The Tribunal put to him that he stated in the attachment to his application (responses to Q4 and Q87) that [Mr B] lit the fire and framed him as the criminal. [The applicant] replied ‘yes’. When queried that is not what he just said, he said [Mr B] lit the fire and said he was involved. When asked why [Mr B] would do that to take revenge on him when [Mr B] earns his living there and could have just got the boss to sack him, [the applicant] replied he can’t say why [Mr B] would have done this but indicated he was [Mr B]’s target because [Mr B], having done a lot of things against him, had not been able to stop him having a relationship with his sister, so did something to get rid of him from there. As discussed above, the Tribunal does not accept this account and finds that, if [the applicant]’s claims about his relationship with Ms [A] were true, [Mr B] could easily have arranged for [the applicant] to be dismissed from the factory and forced him to leave [Town], return his home village and cease to have any contact with [Ms A], under threat of a further severe beating.

In relation to his claim to have converted to Hinduism, [the applicant] said he was not converted from his heart but just said he was converted so he could get Ms [A] and did not accept that religion. He added that he is a Christian now which he believes in from his heart. The Tribunal asked [the applicant] if he discussed his conversion to Christianity with Ms [A]. He indicated he did not and did not feel the need to as it is his choice and he would rather ask her to join with him as a Christian. The Tribunal queried [the applicant] that he indicated he was prepared to convert to Hinduism to marry Ms [A] because of his love for her, rather than ask her to convert to Islam. He replied that he has now found a beautiful religion and would rather convince her to convert to his religion.
The Tribunal explained to [the applicant] the implications of s.5J(6) of the Act which requires that the Tribunal be satisfied that conduct he has engaged in in Australia must be disregarded unless the Tribunal is satisfied that it was done for a reason other than to strengthen his claim to be a refugee. [The applicant] commented that he has converted to Christianity with his whole heart, even though others have come to him with messages against Jesus. He indicated that he came to be interested in Christianity when the detainees were visited by a Catholic father, who told them stories from the Bible.
When asked what are some of his favourite stories from the Bible [the applicant] mentioned John 3.16, commenting that God gave this earth his only son and those who follow his son will get eternal life. The Tribunal asked [the applicant] if he could tell it about some of the stories from Jesus’ life that he likes. He said some people called Jesus mad, others called him Messiah, Jesus could give life to the dead man, give sight to the blind man or get the madman well. He commented that in Matthew 6.1 Jesus said don’t show off the religion, better you do something that will be liked by God and God will give you something. When asked about other stories he liked, [the applicant] replied that there are many stories and commented that Jesus told us to forgive others and love people and he was well known for his kindness and used to show his love to people.
The Tribunal asked [the applicant] if he could tell the Tribunal about some of the things that happened to Jesus in the last week of his life. He replied that many say Jesus lived only 30 years while others say he lived to be 33 years old. He then spoke of Jesus having turned water into grape juice. When asked again about some of the things that happened in the last week of Jesus’ life [the applicant] said Jesus was the King of Israel and was welcomed by most people when he came into Jerusalem on a donkey. He said Jesus loved young children and the lamb. When asked why Jesus was crucified, [the applicant] replied that King Herod did not like him, was jealous and saw him as an enemy. He said Jesus’ friends tipped off the King and he was caught. He added that Jesus was the son of God and sacrificed himself for our betterment. When asked what happened after Jesus was crucified, [the applicant] said he was taken inside a hole and later disappeared and went to the father, and appeared again 40 days later on top of a mountain and was seen by three of his friends. [The applicant] added that Jesus narrated everything about what would happen to his friends and followers and it all came true. When asked what Christians celebrate on Easter Friday and Easter Sunday [the applicant] indicated that Jesus was tortured and died on Easter Friday and on Sunday he got his life back.
The Tribunal found that [the applicant] has a reasonable knowledge of some Christian scripture. The Tribunal finds this is corroborated by the supporting statements made by some Christian figures who have had contact with [the applicant] in the detention centres in Australia, which indicate that that he has attended and participated in Bible classes and mass and was baptised as a Catholic [in] July 2017.
The Tribunal asked [the applicant] what he fears if he had to return to Bangladesh as a convert to Christianity. He said he would not be able to practise as a Christian in Bangladesh because he could not tell others that he had converted. He said he would not be accepted back in his home village. The Tribunal put to [the applicant] country information from DFAT indicating that there are no apostasy laws so it is not illegal in Bangladesh to change religion, including from Islam to Christianity but DFAT acknowledges that persons converting from Islam to Christianity are more likely to face societal pressure; that there are no legal or other restrictions preventing Christians from freely practising their faith; that Christians have made a significant contribution to public life in Bangladesh, particularly in relation to social welfare and the Christian education system, which is open to all faiths and is highly regarded by the communities in which Christian schools and universities operate; and that DFAT assesses that Christians face a low risk of societal violence in the form of occasional localised incidents, which is higher for those who have converted from Islam without the support of their community or family, but the extent of the risk would depend on individual circumstances.[30] [The applicant] indicated he had no further comments he wished to make.
[30] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 3.27-3.28, 3.33-3.35 and 3.55-3.60.
Having carefully considered [the applicant]’s circumstances and the totality of his evidence, while the Tribunal accepts that [the applicant] was baptised [in] July 2017 and has been participating in Christian services and activities in Australia, the Tribunal is not satisfied that [the applicant] has done this otherwise than for the purposes of strengthening his claim to be a refugee. In reaching this conclusion the Tribunal has given significant weight to its findings on his other claims. Essentially the Tribunal has found that [the applicant] has concocted all his other key claims. The Tribunal therefore finds he is not a witness of truth. In light of this, the Tribunal is not prepared to give [the applicant] the benefit of the doubt in relation to his claim to be a genuine convert to Christianity. The Tribunal also considers that [the applicant] had a strong incentive to engage in Christian activities following the decision of the first delegate on 4 January 2017 refusing his Protection visa application (including because she did not accept his core claims). The Tribunal finds that the Christian services and activities [the applicant] has been participating in since 2017 are readily available in the immigration detention environment where [the applicant] has been residing since he arrived in Australia in November 2012, and therefore it is easy for [the applicant] to access and engage in these services without being committed to them. Accordingly, the Tribunal has disregarded this conduct (in accordance with s.5J(6) of the Act).
Noting that s.5J(6) of the Act only relates to the refugee criterion, the Tribunal has also considered this claim under the complementary protection criterion. As noted above, the Tribunal is not satisfied that [the applicant] was baptised as a Catholic in July 2017 and has been attending church services and participating in Bible studies and other Christian activities otherwise than for the purpose of strengthening his claim to be a refugee and therefore for protection generally. Having reached this finding, the Tribunal does not accept that he would seek to practise as a Catholic or any other branch of Christian faith if he was returned to Bangladesh, but considers that he would revert to identifying as a Muslim. Consequently, the Tribunal does not consider that [the applicant] would face a real risk of being considered an apostate, or would be ostracised or targeted for harm by Islamic extremists, members of his family or members of the broader Muslim community should he be returned to Bangladesh. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm on this basis.
In reaching this finding the Tribunal has also considered whether [the applicant] having been baptised as a Christian in Australia and having participated in Christian activities in Australia might become known to community members in Bangladesh and, by extension, might result in him facing a real risk of significant harm in Bangladesh. Noting that [the applicant] has been associating with other Bangladeshis in immigration detention, the Tribunal considers it is possible that community members in Bangladesh may have become aware or could in the future become aware of [the applicant]’s having been baptised in Australia and having participated in Christian activities in Australia. While the Tribunal considers that this might result in community members asking [the applicant] about what he did in Australia and possibly expressing disapproval about him participating in Christian activities in Australia, the Tribunal finds there is nothing before the Tribunal to indicate or suggest that there is a real risk that [the applicant] would face significant harm in Bangladesh from anyone in Bangladesh because of his church related activities in Australia, given the Tribunal’s finding that [the applicant] would not identify and practice as a Christian on return to Bangladesh. Accordingly, the Tribunal does not accept that [the applicant] would face a real risk of suffering treatment amounting to significant harm if returned to Bangladesh, due to his Christian religious activities in Australia. As [the applicant] would still be considered a Muslim he would not be considered an apostate.
Is [the applicant] at risk of harm because of his illegal departure, the ‘data breach’ and as a returned asylum seeker?
[The applicant]’s previous representative claimed that the Departmental data breach of 10 February 2014 gives rise to a sur place claim as there is a strong likelihood Bangladeshi authorities would be aware [the applicant] has sought asylum in Australia. It was claimed that this might affect his safety and potential treatment by the authorities on his return to Bangladesh. In this regard the Tribunal notes that the ‘data breach’ occurred when information regarding persons who were in Australian immigration detention on 31 January 2014 was accessible online for a short period of time before it was removed from the Department’s website. This included personal details regarding [the applicant]. The Tribunal accepts that the data breach may have resulted in authorities in Bangladesh and others becoming aware that [the applicant] was in Australian immigration detention in January 2014 and that some may assume that he had sought protection in Australia.
In considering whether his illegal departure and the data breach puts [the applicant] at risk of harm (or increased risk of harm) the Tribunal considered information and advice drawn from the current DFAT Country Information Report, and put to [the applicant] at the hearing, as follows:[31]
·Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return.
·The International Organization for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh.
·DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
·Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted (see Bangladesh Nationalist Party (BNP)). DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
·DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
·Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.
[31] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.27-5.30.
The Tribunal put to [the applicant] that based on this information it seems unlikely that he would be of interest to the authorities if returned to Bangladesh. The Tribunal, while accepting that Bangladeshi authorities may assume that he sought protection in Australia, finds that the relevant country information indicates that there is not a real chance that [the applicant] would suffer serious harm or a real risk that he would suffer significant harm because he would be detained and/or imprisoned and be subjected to mistreatment or torture because he departed Bangladesh illegally, was subject to the data breach and returned to Bangladesh as a failed asylum seeker. In this regard the Tribunal notes DFAT’s advice that it has no evidence to suggest that recent returnees (which include both voluntary and involuntary returnees such as those who departed illegally) have received adverse attention from authorities or others.

100. The Tribunal notes the DFAT advice above that for those returning to Bangladesh who have a particular political profile, especially with the BNP, it is likely that their entry into Bangladesh will be noted. In this regard the Tribunal considers there is nothing in [the applicant]’s evidence to indicate or suggest that his level of support for and involvement with the BNP or any activities he may have undertaken for the BNP in Bangladesh were such as to give rise to a ‘particular political profile’ as a member or supporter of the BNP that would lead to his return being noted by Bangladeshi authorities or any other action being taken against him on arrival. Similarly, the Tribunal finds that there is nothing in [the applicant]’s evidence to indicate or suggest that his claimed support for the BNP or any activities he may have undertaken for the BNP in Bangladesh were or would be such as to cause him to come to the adverse attention of AL members and supporters in Bangladesh.
101. For the reasons given above the Tribunal does not accept that [the applicant] has been disowned by his family or ostracised by his community and therefore considers that he can return to his home in his home area of Bangladesh. The Tribunal accepts that [the applicant] has been in immigration detention in Australia for a very long time and is anxious and upset about the prospect of returning to Bangladesh. The Tribunal accepts that he is taking medication of an evening to help him sleep and sometimes takes Panadol for pain relief but finds that it has not been claimed or suggested that he would not be able to obtain that medication in Bangladesh if necessary. The Tribunal finds that the available information does not support the contention that there is a real chance that [the applicant] would suffer serious harm or a real risk that he would suffer significant harm as a consequence of his mental and physical health issues if he was returned to Bangladesh.
Conclusion – refugee criterion
102. After careful consideration of all the available evidence, [the applicant]’s personal circumstances and relevant country information, and considering his claims both individually and cumulatively, the Tribunal concludes that there is not a real chance that [the applicant] would suffer persecution involving serious harm from the Bangladeshi government and its authorities; AL members and supporters; JI members and supporters; his family members; members of the Hindu community; members of the Muslim community, including Islamic extremists, due to his religious beliefs; personal relationship/marriage status; actual or imputed political opinions; debts to people associated with the AL; physical and/or mental health issues; and/or status as someone who departed Bangladesh illegally, was identified through the Departmental data breach, and was returned to Bangladesh involuntarily as failed asylum seeker, should he return to Bangladesh, now or in the reasonably foreseeable future.
103. For the reasons given above, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
104. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
105. In considering whether there is a real risk that [the applicant] will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[32]
[32] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
106. Considering [the applicant]’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as set out in s.36(2A) from the Bangladeshi government and its authorities; AL members and supporters; JI members and supporters; his family members; members of the Hindu community; members of the Muslim community, including Islamic extremists, or anyone else, should he be returned to Bangladesh. Accordingly, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
107. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in s.36(2).Claim to fear harm on return, including as a consequence of the February 2014 data breach
DECISION
108. The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 793

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction