1823969 (Refugee)

1823969 (Refugee) [2019] AATA 6782 (11 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823969
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Paul Windsor
DATE:11 October 2019
PLACE OF DECISION:  Melbourne
DECISIONS:  The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2019 at 3:43pm
CATCHWORDS
REFUGEE – protection visas – Bangladesh – Federal Court remittal – religion – conversion to Christianity – particular social group – mixed religion relationship – premarital sex – illegal departure – imputed political opinion – opposition to major political parties – witness to a political killing – physical violence – failed asylum seeker – no family or community support – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (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 Immigration and Border Protection on 12 July 2016 to refuse to grant the applicant, [named], 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 on 15 January 2016. It is a requirement for the grant of this visa that the applicant satisfies a criterion mentioned in paragraph 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 an applicant who has met the above requirements and has been granted a Subclass 790 (Safe Haven Enterprise) visa.
The delegate’s decision record indicates that [the applicant] entered [Country 1] illegally from [Country 2] in October 2012 and in [Country 1] he boarded a boat code named ‘[boat name]’ which was intercepted by Australian authorities and brought to Christmas Island [in] November 2012. He was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV) on 28 August 2015 and made the SHEV application on 15 January 2016.
In his protection visa application [the applicant] indicated that he was born in [his home town] in the Jessore district of Bangladesh on [date]. He stated he is of Bangladeshi ethnicity, speaks Bengali, is a Muslim, and has never married or been in a de facto relationship. He indicated that he came to Australia as an unauthorised maritime arrival without travel documents, arriving in Darwin [in] November 2012 after departing [Country 2] around [a date in] October 2012.[1]
[1] See the Departmental file.
In the protection visa application [the applicant] claimed to fear serious harm in Bangladesh because he was a Muslim and was in a relationship with a Christian woman. In a subsequent statement he also claimed to fear Awami League (AL) members and members of the Bangladesh National Party (BNP) because he witnessed the killing of a BNP member by AL members in a fight outside his family shop.[2]
[2] Ibid.
The delegate concluded that the applicant’s claims for protection (apart from his claim to have been affected by the 2014 ‘data breach’) ‘have been fabricated in their entirety’ and refused to grant the visa on the basis that she did not accept he had been in a relationship with a Christian woman, has been disowned by his family or is perceived by the AL and BNP to be opposed to them because the AL suspected he will inform on them, and because he refused to be a witness for the BNP respectively in relation to the claimed murder incident.
In accordance with Part 7AA of the Act the delegate’s decision was automatically 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). The IAA affirmed the delegate’s decision on 16 September 2016.
Judicial review
The applicant sought judicial review of the IAA’s decision in the Federal Circuit Court of Australia (FCCA) [in] October 2016.
The matter proceeded on the assumption that the applicant was a ‘fast track applicant’ and the decision had been reviewable by the IAA. The application for judicial review in the FCCA was dismissed [in] March 2017: [details deleted].
The applicant subsequently contended, however, that he never was a fast track applicant and therefore was not properly notified, as required by s.66 of the Migration Act, of his right to have the decision reviewed under Part 7 of the Migration Act before the Tribunal. This was a fresh ground which was not raised in the FCCA and, therefore, required a grant of leave to be pursued in the Federal Court of Australia (FCA), which was not opposed. The FCA considered ‘whether the review of the delegate’s decision correctly occurred under the abbreviated auspices of Part 7AA and its designated review body, the Immigration Assessment Authority (‘Authority’), or ought to have proceeded under Part 7 as a full merits review before the Administrative Appeals Tribunal’.
[In] August 2018 the Full FCA allowed the appeal and set aside the order made [in] March 2017 by Judge Driver of the FCCA and quashed the decision of the IAA made on 16 September 2016: [details deleted]. The Full FCA declared that:
[Details deleted.]
Following the decision of the FCA, on 17 August 2018 [the applicant] sought review of the delegate’s decision of 12 July 2016 by the Tribunal (this case – 1823969). He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See folios 1-14 of the Tribunal file.
On 5 April 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. On 8 April 2019 he lodged a further application with the Tribunal for review of the delegate’s decision of 12 July 2016 (case 1908575).
[The applicant] appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
[The applicant] was represented in relation to the review by his registered migration agent. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (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] claims were set out in a document titled ‘Statement of [the applicant]’ which was included with his SHEV application lodged on 15 January 2016.[4] His claims from this statement are summarised as follows:
[4] See Ref ID CLD2016/2877632 of the Departmental file.
·He was in a relationship with a Christian woman named [Ms A]. He met her in 2008 at his father’s shop. After about three or four months they started a relationship. He used to arrange to meet her secretly. They never showed any affection in public but her brother’s friend saw them at the shop and at a park where they used to go.
·Her brother ([Mr A]) never accepted the relationship. He was from a wealthy family and did not accept the relationship because [the applicant] came from a poor family.
·After about four to five months [Mr A] came to the shop and told him he should not see [Ms A] again. [The applicant] agreed. [Ms A] kept coming to the shop, however, and they talked and had tea together.
·About two to three months later, [Mr A] came to the shop with about ten people. They beat him severely and his tooth fell off. They burnt him with a hot pole.
·He escaped to his house but they followed him. [Mr A] complained to his father. His father said it was not his concern as he had found [the applicant] on the street and [the applicant] was not his son. This was the first time he was told he was adopted.
·[Ms A] and he then ran away and lived in Khulna. They were planning to get married. [Ms A’s] family found them, abducted them and brought them back with the help of local thugs and police.
·Supported by [the applicant’s] father, [Mr A] organised a ‘Shalish’, a village meeting, about him. During the meeting, the leaders of the village, the Imam and the Madrasa teachers told him that he is a Murtad (an apostate of Islam) because he has committed adultery with a Christian woman. He was beaten by members of the community, and handed over to the police. He was kept in a police cell without any accusation for over a month, and tortured unlawfully. They did not send his matter to the court.
·After he was released [Mr A] beat him again and told him to leave the area. He could not get any medical treatment. A passer-by, [Mr B], saw him in the street and offered him a place to stay in [Village 1], about 20 km from his home village, in exchange for doing different jobs.
·He stayed in [Village 1] for about a year. He could not speak with [Ms A] or anyone else, including when he was working, because [Mr A] was still after him and the Madrasa students were also after him because he was seen as an enemy of Islam who had committed a crime punishable by death. [Mr B] could not continue to give him safety because he was elderly. As he had no-one to protect him he left the country.
·He did not mention these issues during his arrival interview because he did not know what was relevant. He feared that if the Department knew he did not have a family and a Christian woman is involved they would send him back.
·He fears that if he is returned to Bangladesh he will be subjected to serious harm including death, from [Mr A], his own family and radical Sunni Muslims. His friend has told him that [Mr A] is still looking for him for dishonouring and shaming his family. He said they will find him wherever he goes and kill him.
·The authorities won’t protect him because he does not have money. [Mr A’s] family are wealthy and can manipulate the police. He has no family or friends who can help him.
[The applicant] subsequently submitted a further statement dated 24 April 2016 titled ‘Statement of [the applicant’s full name]’ in support of the application.[5] Additional relevant matters raised in this statement are summarised as follows:
[5] See Ref ID [number] of the Departmental file.
·His full name is [full name] but people call him [name]. He does not know his exact date of birth.
·His family have disowned him and he does not know where they are currently residing. He has not had contact with them for a long time. He does not know why his Form 790 states his father and brother are currently residing in [Country 3].
·He gave incorrect information at his entry interview. He thought he would be sent back to Bangladesh if he told his real story.
·[Ms A’s] brother’s name is [Mr A1] rather than [Mr A].
·Today he has had the definition of a refugee explained to him by a lawyer. He would like to add some further information about problems he experienced in Bangladesh. In 2007 or 2008 a fight broke out outside his family shop between AL members and BNP members. One of the BNP members was killed. The brother of the dead man came to the shop and asked if he had seen who killed his brother. A case was opened and the BNP people wanted him to be a witness for the case. He, his father and two others who were in the shop all witnessed the fight and were asked to be witnesses.
·This incident occurred at the same time he was seeing [Ms A] but his father had not found out about it at that time.
·He and his father refused to be witnesses although they saw who did the murder. The men who committed the murder were well known AL members. He has been threatened by the AL members who said they would kill him if he gave evidence. They told him they had heard he had told the BNP that he had seen who had committed the murder. He denied this but they slapped him until he admitted it. They threatened to kill him if he gave evidence in the case and said he needed to leave the area. He fled to Dhaka. He stayed in a hotel in Dhaka in [Location 1].
·After a month he went back to see if the situation had improved. He kept a low profile but heard from friends that both sides were looking for him. Both sides wanted to apply pressure on him. His father had told both parties he had not witnessed the murder so did not have the same pressure applied to him. If he returns to Bangladesh the AL people may still kill him because they know he was a witness in the murder, and the BNP members may kill him for not supporting them.
·When he returned to his area he also kept seeing [Ms A]. When her brother and his father found out, that caused the other problems he explained in his original statement. After he returned from Dhaka, [Mr A1] called a Shalish and made the accusations against him to the Imams and community and they have taken this to be true.
·Everyone in the community is now against him. They openly call him a bastard child and know he committed adultery. His family has disowned him and other villagers abuse him.
·He also fears the Muslim community will harm him because of his relationship with [Ms A]. They view him as an apostate.
·He cannot survive in Bangladesh without family support. He has no home to live in, no job and no money.
[The applicant] attended an interview with the delegate on 28 April 2016. His then representative submitted a post-interview submission dated 31 May 2016.[6] Relevant additional matters raised in this submission are summarised as follows:
[6] See Ref ID [number] of the Departmental file.
·The essential and significant reasons for [the applicant’s] claimed fear of persecution are:
His perceived opposition to the BNP for having no political alliance and not agreeing to be a witness in a murder case of a BNP member;
His perceived opposition to the AL for having no political alliance and their suspicion that he will inform the authorities of the murder committed by one of their members;
His actual lack of political affiliation with any political party in Bangladesh;
His imputed religious beliefs as a Christian convert/apostate;
His membership of a social group of people living in Bangladesh who contravene social or religious values regarding sexual conduct.
·[The applicant] claims to have no political affiliation and is not a member of the BNP or AL. Political affiliation is a critical survival tool in daily life in Bangladesh. Party membership provides a social network, protection and identity.
·[The applicant] claims he was subjected to a ‘salish’ (village court) and is now considered an apostate by his community on account of his sexual relationship with a Christian girl.
·It is submitted that adequate state protection is not available to him either in his village or in other parts of Bangladesh.
·He cannot escape the problems he has experienced by relocating to another area.
·He is also at risk of suffering significant harm.
·He fears he will face detention and/or imprisonment if returned to Bangladesh because he departed illegally. Country information indicates prison conditions in Bangladesh are harsh and at times life threatening. Torture is also pervasive in Bangladesh.
·[The applicant] acknowledges he has provided incorrect information in the past relating to his claims. He confirms that the information given at the Entry Interview was not correct and that he did not know how his real story would be perceived by the Australian authorities. He confirms at the Identity Interview that he travelled to [Country 2] by boat and has never had a real or false passport. He was worried and did not have much concept of the process and did not want to provide any information which could have been used to send him back to Bangladesh. He confirms that some of the information provided at an interview with a Case Officer on 14 March 2014 was incorrect. He felt under enormous pressure at the time that he was going to be sent home as this is what he had been advised by the department. He has clarified that the AL never asked his father for money and that he did not join the BNP in 2008. He can clarify that:
[Ms A] did not go missing, they left the village together voluntarily and her brother could not find them;
[Ms A’s] brother went to the police and aided in getting him arrested and charged with harming [Ms A].
He spent one month in jail on the basis that he had kidnapped [Ms A] but the police did this to justify keeping him in detention because they were paid by [Ms A’s] brother – they knew she was not missing and did not suspect him of committing an offence. He states he was beaten whilst held in jail.
·The information provided that he has a case pending against him in Bangladesh is incorrect. His vulnerability and the pressure he is facing going through the protection visa process should be taken into account.
·He provided incorrect information due to his fears that he would be sent back to Bangladesh and the significant stress he was under to secure a visa. He confirms that the information provided in the interview of 28 April 2016 (the Departmental protection visa interview) is an accurate account of the problems he faced in Bangladesh.
·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.

On 3 September 2019 [the applicant’s] current representative forwarded to the Tribunal a submissions support of the review application. This included a chronology of events; copies of [the applicant’s] previous statements of 15 January 2016 and 24 April 2016; a new statutory declaration by [the applicant] (yet to be sworn – a sworn copy was provided on 17 September 2019); copies of letters of support from various Christian church figures; a certificate of Baptism dated [in] December 2017; a copy of a translation of a letter purportedly by a member of [the applicant’s] village union council dated [in] May 2019 regarding [the applicant] having a love affair with [Ms A], being attacked and being declared to be an apostate; a copy of a purported application for filing of a police ‘General Diary’ entry by [Mr A1] dated [in] July 2008; and copies of/references to URLs for country information by DFAT, the UK Home Office, Human Rights Watch, Amnesty International, The Guardian and the Diplomat magazine.[7]
[7] See folios 39-106 of the Tribunal file.
Relevant additional matters raised in the statutory declaration by [the applicant] are summarised as follows:
·He fled Bangladesh in or around October 2010 and between then and November 2012 he resided in [Country 2] where he worked illegally as [an occupation 1] before embarking on a boat journey to Australia.
·His father’s name is [name]. After finding him as an abandoned child, his father named him [full name]. [His name] is his nickname by which he has been generally known to people. He was raised by his foster parents as Sunni Muslim.
·He met [Ms A] in early 2008.
·[Ms A’s] brother [Mr A1] was a leader of the youth wing of the ruling AL and an influential person coming from an affluent family in the area.
·In November 2008 [Ms A] fled her home and came to their home to be able to be with him. When [Mr A1] heard this he came to his foster father’s shop with about 10 other men and beat him and burnt him with a heated rod. He ran to his home but they followed him and attacked him again. At his home, [Mr A1] complained to his foster father but his foster father said it did not concern him as [the applicant] was not his biological son.
·When he started working in his father’s shop he became politically involved as a local member of the BNP.
·The incident at the shop occurred sometime between 9 and 10 am when a local BNP activist was having tea in front of the shop. Suddenly 6 men on motorcycles arrived and swooped on the BNP activist. They attacked him with machetes, literally hacking him to death. His screams haunt [the applicant] to this day.
·He, his father and two people from the neighbouring village who were in front of the shop at the time were asked to be witnesses in the murder case. He and his father refused to be witnesses.
·Because he was threatened by AL members that he would be killed if he gave evidence he temporarily fled to Dhaka. He stayed in a hotel in Dhaka for a month. When he returned to Jessore he kept a very low profile. He has been told that both ANP and BNP cadres had been looking for him still.
·This is another reason he fears returning to Bangladesh. A criminal case is pending where the BNP can compel him to appear in court as an eye witness to murder.
·This incident occurred at the same time he was seeing [Ms A] but his foster father had not found out about it at the time.
·[In] December 2017 he was officially baptised as a Christian in the Anglican faith and given the name [Christian name]. Conversion from Islam is considered apostasy and is punishable by death.
·He is now in constant fear that if he returns to Bangladesh his life, safety, security and livelihood will be in tremendous risk and danger not only from [Mr A1] and Madrasa students all over the country as an apostate of Islam, but also from ruling AL members with networks all over the country as a probable eye witness to murder committed by the AL men. His conversion to Christianity makes him more fearful of attacks on his life by Madrasa students and extremists, as conversion from Islam to any other religion is considered a blatant act of being an apostate punishable by death.
In the covering submission the current representative comments in relation to [the applicant’s] new claim that he has converted to Christianity and was baptised on [a date in] September (sic) 2017, that [the applicant] regularly attends church services in the various detention centres he has been located in. She states [the applicant] is studying the Bible, having obtained a copy in his own language (while noting that his literacy skills are somewhat under-developed and thus his understanding of the Bible is somewhat laborious, due to him having had only approximately five years of primary schooling).
The representative reiterates that [the applicant] was extremely stressed and worried during the Department’s refugee status determination process. She comments that he is from a rural area of Bangladesh and has only five years of primary school education, has worked in manual jobs in Bangladesh and [Country 2], has very limited travel experience and was detained on arrival in Australia, She submits that ‘it is understandable that [the applicant] was confused regarding the process’. She adds that at least since the beginning of 2016 he has given a consistent account of his reasons for seeking asylum, and further, has consistently claimed a risk of harm in Bangladesh due to his relationship with [Ms A] and accusations of being an apostate. The representative summarised [the applicant’s] grounds for seeking refugee status and/or need for complementary protection as being for the following reasons, individually and cumulatively:
·Being an apostate – both due to his relationship with Ms [Ms A] and his conversion to Christianity while in Australia;
·Lack of family support, and as such, ability to subsist;
·Lack of political affiliation with any political party in Bangladesh;
·Perceived opposition to the AL for having no political alliance and the suspicion he will inform the authorities of the murder committed by one of their members;
·Perceived opposition to the BNP for having no political alliance and not agreeing to be a witness in a murder case of a BNP member;
·Non-compliance with societal values regarding inter-faith relationships and sexual relationships before marriage;
·Failed asylum seeker from Australia, who will be perceived as wealthy; and
·Leaving Bangladesh illegally, and being subjected to a period of detention with the associated risk of torture and harm.
On 15 September 2019 the representative forwarded a post-hearing submission. This included a copy of a further letter of support from [Leader A] of [Denomination 1].[8] The representative advises that [the applicant] is currently prescribed [medication 1 and dosage] daily, which she states is the maximum permissible daily dose. She comments that [medication 1] is used to treat anxiety and major depressive disorder, amongst other ailments, and side-effects include drowsiness. She comments that [the applicant] was upset by the death in detention of a fellow detainee.
[8] See folios 108-109 of the Tribunal file.
The representative comments that she has been advised by a lawyer born in Bangladesh that [Ms A’s] surname ([name]) is viewed as a name belonging to Christian families in Bangladesh. She adds that she understands the Departmental file has a record of [Ms A’s] surname being ‘[a different name]’ (from an interview with a case manager on 14 March 2014). She states this is the same record where [Mr A1’s] surname was incorrectly recorded as [another name] and submits that, as such, the case manager incorrectly recorded the surnames of these siblings (noting there is no audio recording of the interaction).
In response to issues raised at the hearing, the representative indicates that [the applicant] instructs that he and [Ms A] has sexual intercourse while they lived together in Khulna and that they also had sexual intercourse, held hands and kissed, in a side storeroom at his father’s shop. In relation to advice in the submission of 3 September 2019 that [the applicant] was not politically affiliated, she advises this is an error on her behalf and that [the applicant] instructs he was a member of the BNP. She adds that his claim of being perceived to not support the BNP or to oppose them due to refusing to be a witness in the murder of a BNP member stands.
On 17 September 2019 the representative submitted a copy of a sworn (on 17 September 2019) version of [the applicant’s] most recent statutory declaration.[9]
[9] See folios 112-116 of the Tribunal file.
Findings and reasons
Identity
Noting the delegate’s assessment of relevant issues and findings regarding [the applicant’s] identity (set out at paragraphs 23 to 43 of the delegate’s decision record) and that this finding has not been challenged by the applicant, the Tribunal finds that the applicant, while not holding any genuine identity documents, is [the applicant], was born in Bangladesh in [year], and is a citizen of Bangladesh. The Tribunal finds that Bangladesh is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.[10]
Key Issues
[10] See folios 1-14 of the Tribunal file.
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) 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.
Credibility
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, 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.
Assessment of claims
Background and statements made prior to the protection visa application
At the hearing the Tribunal asked [the applicant] about his family in Bangladesh. He said he does not have any family in Bangladesh. He commented that a family found him and brought him up. When asked about the family that brought him up he said they are his support mum and dad and he does not have any contact with them or know where they are living. He said they told him he is not their son and not to contact them. While he used to contact them by phone they changed their phone number. When asked [the applicant] said he last had contact with them 4-5 years ago.
The Tribunal asked [the applicant] whether he had any contact with his father when he came to Australia from [Country 2]. He said he did. He commented that he discussed with his father that he was going from [Country 2] to Australia and his father said okay, you don’t have any home in Bangladesh and it is better you go there. The Tribunal asked the applicant if his father was still supportive of him at that time. He replied ‘no’ and commented that his father never supported him.
In this context the Tribunal put to [the applicant], in accordance with the requirements of s.424AA of the Act, information from a document included on the Departmental file.[11] The Tribunal put to [the applicant] the document is an affidavit made in Bangladesh on 31 December 2012 which appears to be from his father as it states ‘I [variant of father’s name]’, gives some address and other details and states ‘My son [name]’. The Tribunal said the document indicates that he: ‘being indebted due to poverty went to [Country 2] to meet up the same where he found himself insecured by some subversive activities to his life launched by his creditors. Therefore he in order to save his own life went to Australia by sailing boat putting himself in great risk’.
[11] See Ref ID [number] of the Departmental file.
The Tribunal put to [the applicant] that it considers this information is relevant to the review because it is different to the claims he has advanced in the protection visa application, which may reflect on his credibility and cause the Tribunal to doubt the truthfulness of the evidence he has provided and to affirm the decision under review. [The applicant] indicated that he understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review. He requested additional time to comment on or respond to the information and the hearing was adjourned for ten minutes to enable [the applicant] to consult with his representative and consider his response.
After the adjournment [the applicant] responded commenting that he is a bit illiterate and can’t read or write. He said he told one of his friends to organise the document because people on his boat told him to prepare this type of document because it would be helpful for him to get a visa. The Tribunal asked him if he had any other comments he wished to make. He replied that his adoptive father is also illiterate. He indicated he had no further comments he wished to make.
The Tribunal asked [the applicant] if he is saying the document is not genuine. He replied ‘yes’. The Tribunal asked if his father produced the document. [The applicant] replied ‘no’. The Tribunal put to [the applicant] that he was able to get his friend to have a fraudulent document prepared which he provided to the Department. [The applicant] responded that it is not fake, they just prepared it and he submitted it. He added that he does not have any identity documents in Bangladesh so that person prepared it and he does not know if it is false or not. The Tribunal put to [the applicant] that the document is a sworn statement, an affidavit, from his father. He replied ‘yes’. The Tribunal commented that if his father had not made it, then it must be a false document. [The applicant] replied that his friend knows about his address and is educated, and prepared the document.
The Tribunal notes that the statements in the purported affidavit are broadly consistent with comments made by [the applicant] during his Entry Interview with a Departmental Officer [in] November 2012, in that they relate to economic matters. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, indicates at paragraphs 14 and 15 that, when asked at the Entry Interview why he left his country of nationality [the applicant] stated:
‘We are very poor – we had 10 katar (measurement – square metres) of land – whether mother and father work and my family members said that one of us – 3 brothers had to go and find work – I went to [Country 2] – I would send money but it only allowed my family to survive for one month.’
When questioned what he thought would happen to him if he returned to his country of nationality [the applicant] responded:
‘It is better to die or be killed than to have to go back to Bangladesh. I cannot even own a bank account.’
Neither of these accounts makes reference in any way, even vaguely or obliquely, to [the applicant’s] subsequent claims regarding fearing harm due to having a relationship with a girl (Christian or otherwise) or witnessing a murder. While the Tribunal is cautious about putting too much store in what is said at the initial Entry Interview, the Tribunal does consider that the failure of [the applicant] to allude in any way to these matters, in the Entry Interview and in the ‘affidavit’ he claims was arranged by his friend, casts significant doubt on his subsequent claims. At the hearing the Tribunal asked [the applicant] why he did not mention his claimed fears due to having had a relationship with [Ms A] and witnessing a murder at his Entry Interview [in] November 2012. He replied that he did not mention at that time that he has no mum and dad and was called a bastard because he had arrived in a nice country and thought if he told the genuine things that had happened to him he would not be allowed to stay. The Tribunal queried him why he thought he would be allowed to stay if he did not say what his problems were. He replied that he mentioned those things when he got the opportunity.
While the delegate’s decision record indicates at paragraph 16 that [the applicant] raised falling in love with a girl (recorded as ‘[Ms A] [different name]’) in an interview with a Departmental Case Officer on 14 March 2014, there are many documented elements of this interview that the applicant has now indicated were either false or subject to errors when the information was documented. These include the names of the relevant parties (‘[Ms A] [different family name]’ and her brother ‘[Mr A1]’ – now referred to as [Ms A] and [Mr A1]); the duration of [the applicant’s] relationship with [Ms A] (they dated for four years); that AL members came to his father’s shop demanding money and his father went to [Country 3]; that [the applicant] joined the BNP after [an event] in 2007 (a claim he subsequently has reinstated with the modification that he joined when he commenced work in his father’s shop in the bazar); that he was released from jail after a Member of Parliament organised his bail, but a charge of kidnapping or harming [Ms A] remained pending and he fled to [Country 2] without further appearing in court in 2009. The Tribunal notes there is no mention at all, in the summary of information from this interview, of [the applicant] fearing harm due to witnessing a murder, or that [Ms A] was a Christian and his relationship with her was an inter-faith relationship. At the hearing the Tribunal queried [the applicant] why he told the Case Officer that he had a kidnapping charge against him. He said he could not explain his situation properly which was that police took him from Khulna and he thinks the interpreter interpreted wrongly. He commented that he said [Mr A1] and they wrote [the different name]. The Tribunal asked him why he said the AL had been seeking money and his father and brother were in [Country 3]. He replied that he was ‘very little’ at this time. The Tribunal asked him why he did not mention that he had witnessed a murder at this time. [The applicant] replied that he thought if he mentioned that he had been involved in fighting he would not get a visa. The Tribunal put to him that he has not indicated that he was involved in fighting but was a witness to a murder. The Tribunal asked him why he did not mention this matter 18 months later when he applied for protection. He replied that he mentioned it at the protection visa interview.

While the Tribunal accepts that some inconsistencies or omissions in detail may be accounted for by [the applicant’s] rural background and limited education; the stress of his boat journey and detention (and subsequently being prescribed [medication 1] – used to treat anxiety or depressive disorders); whatever he might have been told he should say to Australian authorities by people smugglers and fellow boat passengers; and his initial lack of legal representation; the Tribunal does not accept that the evolving nature of his account of his circumstances and the significant inconsistencies in his account can be entirely explained by these factors. The Tribunal finds it difficult to accept [the applicant’s] assertions that he did not wish to tell his true story initially because he felt the Department would send him back to Bangladesh if he did. It is difficult to comprehend why he would be advised by people smugglers or think he would be allowed to remain in Australia because he and his family faced economic hardship in Bangladesh and [Country 2] but would be returned to Bangladesh because he feared he would be harmed because he was in a relationship with a women that upset people and because he witnessed a brutal murder and was threatened he would be killed if he spoke to police about what he had seen.
The delegate’s decision record also indicates that [the applicant] was among a group of Bangladeshi immigration detainees who signed a letter dated [in] August 2014 to the Minister for Immigration and Border Protection stating they were not involved in any criminal activities in Bangladesh. This appears to relate to [the applicant’s] subsequent advice (provided by his representative in the post-interview submission to the Department) that the information he provided that he had a case pending against him in Bangladesh is incorrect. The then representative requests that the delegate ‘take into account the considerable pressure and vulnerability of our Client going through the protection visa process and the desperation to obtain a visa in a country which is safe’; and comments ‘Our Client has taken steps to correct the information provided to DIBP and confirms that the information provided in his DIBP interview 28^th April 2016 is an accurate account of the problems he faced in Bangladesh’. The Tribunal finds that this does not explain [the applicant’s] willingness to provide false and misleading information and the significant omissions and inconsistencies in his account in the nearly three and a half years since his arrival in Australia in mid-November 2012 and his protection visa interview on 28 April 2016. As discussed below, the Tribunal also finds there continue to be significant inconsistencies in his account of his circumstances.
In relation to the comment that [the applicant] lacked legal representation, the Tribunal also notes that when [the applicant] lodged his SHEV application on 26 January 2016, the statement included with the application was prepared with legal assistance. The bottom of the fourth page contains advice that the statement was prepared over the course of three hours by [a named support agency]. The Tribunal notes that this statement, prepared by an organisation specialising in refugee matters, makes no mention whatsoever of [the applicant] fearing harm because he witnessed a murder in Bangladesh. This claim was raised for the first time in [the applicant’s] statement of 24 April 2016, submitted a few days before the interview with the delegate on 28 April 2016.
The Tribunal found that the above matters gave rise to significant doubts about the veracity of [the applicant’s] claims to fear harm due to having been in an inter-faith relationship with a Christian girl and to have witnessed the murder of a BNP member by AL members.
Was [the applicant] in an inter-faith relationship with a Christian girl and did he witness a murder?
The Tribunal found that one of the difficulties in this case was establishing a timeline of when claimed key events took place. In his statement of January 2016 [the applicant] indicated he met [Ms A] in 2008 and after about three or four months they started a relationship. He then indicates that about 4 or 5 months into their relationship her brother came to his father’s shop and warned him not to see her anymore. He indicated that she kept coming to the shop and that about 2-3 months after the first warning her brother came to the shop with about 10 others and severely beat him. He indicated that it was at the time of this incident that his father said the matter did not concern him as [the applicant] was not his son. He indicated that he and [Ms A] ran away to Khulna but her family found them and brought them back with the help of police and the salish was organised. He states he was beaten by the community after the salish, handed over to police where he was held in jail for a month and tortured before being released. He states that after he was released he was beaten again by [Ms A’s] brother who told him to leave the area, and was left in the street crying, where [Mr B] came upon him and offered him a place to stay in [Village 1], about 20 km from his home village, in exchange for doing different types of jobs. He indicates that he spent a year there and could not speak with [Ms A] or anyone else during this time as [Ms A’s] brother was after him and Madrasa students were after him because he seen as an enemy of Islam. This timeline would seem to encompass a period of between 23 and 26 months from when [the applicant] claims he met [Ms A] in 2008.
In his second statement of 24 April 2016, in which [the applicant] introduced the claim to have witnessed a murder, he indicates that he ‘fled’ Bangladesh for [Country 2] in approximately October 2010. Working backwards from this date it would seem that he would have met [Ms A] sometime between August and November 2008. In this statement [the applicant] indicates that the murder he claims he witnessed occurred in 2007 or 2008 but he states that it occurred at the same time he was seeing [Ms A], which would place it in 2008 or later. He states that because he was threatened by AL members and told he would be killed if he gave evidence and was told he needed to leave the area, he fled to Dhaka. He indicates that (despite the threat that he would be killed) he returned to his home town after a month ‘to see if the situation had improved’. He states he kept a ‘low profile’ but heard that both sides (AL and BNP) were still looking for him. He states that when he returned to his area he continued seeing [Ms A] (despite his claim that he kept a low profile) and this caused the other problems which he explained in his original statement.
The delegate’s decision record indicates that when questioned about these matters at the protection visa interview with the delegate, [the applicant] indicated that he was detained by police sometime in 2008 after he and [Ms A] were brought back from Khulna and was held at the police station for a month. The delegate records that [the applicant] indicated that [Ms A] came to the family shop to see him again about two months after he was released from police custody and that he was told he had to leave his home village within a month. The delegate records that he indicated to her that it was then that the murder took place in front of the family shop. When asked when the alleged murder occurred he indicated he was not sure whether it was October, November or December 2008. The delegate records that at the interview [the applicant] indicated the salish was held after he was released from police custody, which is inconsistent with his first written statement. He also indicated that he was given one month to leave the village, which is also inconsistent with his first written statement that after he was released from police custody, he was again beaten by [Ms A’s] brother, who told him to leave the area, and was left in the street crying where he was discovered by [Mr B] who offered him a place to stay in [Village 1].
In his third statement in September 2019 [the applicant] indicates that he met [Ms A] in early 2008, that he was first threatened by her brother in July 2008 and that he was beaten by her brother and his associates at his father’s shop in November 2008. He indicates that he and [Ms A] then ran away to Khulna. He indicates the salish was held after they were brought back from Khulna with the help of local thugs and police and afterwards he was handed over to police and held in custody for over a month. He indicates that after he was released from police custody, [Ms A’s] brother beat him again and told him to leave the area, leaving him in the street crying before [Mr B] came across him and offered him a place to stay in [Village 1], where he stayed for about a year. He indicates that he also witnessed the murder in or around 2008. [The applicant’s] current representative sought to capture the claimed series events in a chronology included with her submission of 3 September 2009. She acknowledged at the hearing, however, that the time-line is somewhat confusing but asked that consideration be given to [the applicant’s] background where time is marked by wet and dry seasons and Islamic festivals rather than Calendar months. Accordingly, the chronology is not particularly helpful as it simply indicates that [the applicant] met [Ms A] in ‘2008’; that the alleged murder occurred in ‘2007/2008 (October, Nov, Dec?)’; that [the applicant] moved to Dhaka for a month in 2008; that [the applicant] was warned by [Ms A’s] brother in 2008; that the salish was held and [the applicant] was detained by police for one month in 2008; and that [the applicant] moved to [Village 1] in 2009 and then went to [Country 2] by boat in October 2010. The chronology did, however, include two more precise dates based on an additional document provided to the Tribunal: the purported application by [Ms A’s] brother [Mr A1] to file a ‘general diary’ complaint against [the applicant] with police [in] July 2008. On the basis of this document it was also stated that [the applicant] moved to Khulna for one month in July 2008.
If it is the case, as claimed in [the applicant’s] third statement in September 2019, that he met [Ms A] in early 2008 and they fled to Khulna for a month in July 2008, after [Mr A1] came to [the applicant’s] shop looking for [Ms A], made an application for a general diary complaint against [the applicant] and beat him, and that the claimed murder incident occurred at the same time he was seeing [Ms A] but before his foster father had found out about their relationship, the claimed murder incident must have occurred between early 2008 and July 2008, rather than in October, November or December 2007 or October, November or December 2007. To further complicate matters, however, [the applicant] indicated in his third statement that in November 2008 [Ms A] fled her home and came to ‘our home’ to be able to be with him, resulting in [Mr A1] coming to his father’s shop with 10 other men, beating him, following him to his home where he complained to his foster father who then said the matter did not concern him as [the applicant] was not his biological son, and resulting in he and [Ms A] running away to Khulna. This account is partially supported by the claimed statement of [Mr C] dated [in] May 2019 submitted by the representative in her submission of 3 September 2019 (although it states that on 15 November 2018 [Ms A] fled her home to come to [the applicant’s] residence and makes no reference to Khulna).
At the hearing [the applicant] indicated that he met [Ms A] sometime in 2008 but could not remember precisely when. He commented that it may have been in the middle of the year. He said his father used to have a shop in a bazar and she used to come there. He indicated she was attending a school located in front of the shop. He indicated that a relationship built up between them and there was a [garden] nearby where they would sit and drink tea and chat. He indicated that people saw them together. He indicated that after 6-7 months [Ms A’s] brother [Mr A1] found out about them and came to the shop with 4-5 others, beat [the applicant] and told him if he continued to see [Ms A] he would do more harm to him. [The applicant] commented that he said to [Mr A1] if she comes to me to make a relationship what can I do. He said he was beaten and told not to talk to her or contact her. The Tribunal queried [the applicant] that this account is different to the account of this encounter at paragraph 9 of his first statement which did not state he was beaten or that he said to [Mr A1] ‘what can I do’ but indicated he agreed he would not see [Ms A] again. [The applicant] commented that the Tribunal did not know his whole story. He said [Mr A1] threatened him that if he saw him he would kill him or something like that. He commented that [Mr A1] told his dad about the relationship. He commented that when [Mr A1] saw him with [Ms A] again he came to the shop and damaged it, so one day he went to Khulna with [Ms A].
The Tribunal asked [the applicant] whether both he and [Ms A] were at the shop when [Mr A1] came and damaged it. He said they were. The Tribunal asked him what happened. He said they went to his home and told his parents that if he continued to see [Ms A] they will beat him. He said his father said to [Mr A1] that [the applicant] is not my son and that [Mr A1] could do whatever he wanted to do to him.
The Tribunal asked [the applicant] where he was beaten. He replied ‘in the bazar’. He said he was dragged from the shop and beaten. The Tribunal asked what he was beaten with. He replied that he was hit and kicked. When queried ‘anything else’ [the applicant] said they went to his home. The Tribunal commented that in his statement he had indicated he was burnt on the arm with a hot pole but he had not mentioned that just now. [The applicant] said he has a scar on his arm which he can show the Tribunal (the Tribunal did not ask to see this scar, noting that any such scarring could have resulted from a number of causes unrelated to this claimed incident, including in the course of his work in [Country 2] as [an occupation 1]). [The applicant] added that it happened 10 years ago and he has been in detention for 7 years and he is on medication so can’t recall everything that happened to him.
[The applicant] said he and [Ms A] went to Khulna for about a month. He said they stayed in a hotel which they could afford because she had some money. The Tribunal asked [the applicant] how [Mr A1] found out they were there. He said [Mr A1] has great networks and friends and he went to the police and to his friends. The Tribunal queried what their plan was when they went to Khulna. He said it was to get married. The Tribunal asked why they didn’t do that before they were found. He said they could not arrange it. He said [Ms A] told him to wait because they did not have enough money. He added that she wanted him to convert to Christianity and he wanted her to convert to Islam.
The Tribunal asked [the applicant] what happened when [Mr A1] found them in Khulna. He said they were taken from the hotel and he taken to the police station. He said he was held at the police station near the bazar for about a month and was then released and he went home. The Tribunal queried [the applicant] that he was saying that after he was released by police he went home. He replied that he can’t remember. He commented that when he returned from Khulna there was a meeting at his home but he can’t remember whether it was before or after he was detained by the police.
[The applicant] said that at the meeting at his home [Mr A1] was present and the Imam and the Chairman of his area were also present. He indicated that they said he had a relationship with a Christian girl and therefore had already become a Christian and that he is not allowed to stay in the area and if people see him they should beat him severely. Noting that the village salish is a traditional Islamic practice in Bangladesh,[12] the Tribunal queried [the applicant] that it seems surprising that a Christian family would be involved and have a role in such a process. [The applicant] replied that everything is possible in Bangladesh if you have money.
[12] ‘BANGLADESH Taking the law in their own hands: the village salish’, Amnesty International, October 1993, >
The Tribunal asked [the applicant] what happened after the salish. He said he was told he had to leave the area. The Tribunal asked him what he did. He said he went to [Village 1]. He commented that he was sitting by the road crying when a man saw him. He told the man he had nowhere to go and the man took him to [Village 1]. The Tribunal queried [the applicant] whether anything else happened to him after the Salish and before the man, [Mr B], found him. He did not reply. The Tribunal queried him that in his first statement he indicated that [Mr A] (as [Mr A1] was referred to at the time) beat him again. He replied ‘yes’ and commented that, as he has said, he can’t remember.
Noting that in his most recent statement (at paragraph 18) [the applicant] indicated that in November 2008 [Ms A] fled her home and came to his house to be with him, the Tribunal asked [the applicant] if [Ms A] lived with him. He indicated that she did but it was while they were together in Khulna, not at his father’s home. The Tribunal queried [the applicant] whether, in that case, paragraph 18 of this statement is incorrect, also noting that he had indicated in a previous statement that he was beaten before he went to Khulna. [The applicant] replied that he can’t remember. He confirmed, however, that [Ms A] never lived with him at his father’s house.
The Tribunal also asked [the applicant] to tell the Tribunal about the murder he claims to have witnessed. He said his father was involved in BNP politics and he himself used to support the BNP. He said he opened the shop between 9-10 am and a person from the BNP was drinking tea when suddenly AL people came and started hitting him using a sharp knife and other things and the man died. He said he was a ‘little senseless’ and closed the shop. He then corrected himself and said he was senseless and can’t remember if he closed the shop or not. The Tribunal asked [the applicant] if he was by himself. He said his father and others were nearby. The Tribunal asked him if the police came. [The applicant] replied ‘no’. The Tribunal asked him who removed the body. He said he was senseless so did not know who removed the body. He commented that after that, BNP attended and asked who did it. He said that because he was involved with BNP politics he told them he could recognise the person if he saw them again. He commented that the BNP filed a case and the AL came to know and came to him and said to him that if he appears as a witness they will kill him. The Tribunal asked [the applicant] what he did then. He replied what could he do, he did not have his parents’ home and was given two days to leave the country so he left that area and went to Dhaka. The Tribunal asked [the applicant] where he stayed in Dhaka. He said he went to [Location 1] and wandered the streets and shops and was always fearful. The Tribunal asked [the applicant] where he slept. He indicated that he did not have any money and stayed in free accommodation for orphans. When asked when this was he said ‘November’ but indicated he could not remember exactly which year. He then said it might have been June or July.
The Tribunal asked [the applicant] if the police ever came to talk with him about the murder. He replied ‘no’. The Tribunal queried why not, commenting that he was running a shop where a vicious murder took place. [The applicant] responded that they were looking for him but could not find him so they could not talk to him. He commented that the AL told him to leave, the BNP told him to stay and the Imam of the mosque said he could be killed because he had converted to Christianity. The Tribunal put to [the applicant] that he didn’t convert to Christianity, he indicated that he wanted [Ms A] to convert to Islam and having a relationship with a Christian girl would seem to be quite different to converting to Christianity. [The applicant] replied ‘yes’. The Tribunal put to him, in that case, why would the Imam say he should be killed. [The applicant] replied that he had a relationship with her, then stayed with her away from her home and [Mr A1] organised a salish. The Tribunal queried whether the salish might have found that an Islamic solution to the matter would be for [Ms A] to convert to Islam and the two of them to marry. [The applicant] replied that [Mr A1] is very rich and very powerful.

The Tribunal queried [the applicant] that when he first raised this matter in his second statement he indicated that a fight had broken out between BNP and AL members in front of his family shop. He replied ‘yes’. The Tribunal commented that what he has told the Tribunal at the hearing does not sound like a fight but sounds like a BNP member was drinking tea when AL members came and attacked him with knives or machetes. [The applicant] said they killed that person. The Tribunal again queried that it was not a fight. He said the person was drinking tea and they came and killed that person. The Tribunal queried him that he indicated that he stayed in a hotel in [Location 1] in Dhaka. He replied that he did not know exactly whether where he stayed was a hotel or not. The Tribunal also queried [the applicant] that he had previously indicated he was not a member of the BNP but in his most recent statement said he was a local member of the BNP. He commented that his father was a member of ‘Jamaat’, which is part of the BNP. When asked if he was a member of the BNP he replied ‘yes’. He added that there was an office in the bazar so he became a member as he liked them. The Tribunal put to [the applicant] that this is contrary to what was stated in the submission by his previous representative, [Business 1], which stated that he had no political allegiance. He replied ‘yes, I was involved’. The Tribunal pointed out that the recent submission by his current representative also states that he has no political affiliation with any political party in Bangladesh. [The applicant] commented that during the interview with the delegate he said he was a supporter of BNP and his father was with Jamaat.
The Tribunal asked [the applicant] why he returned to his village after one month in Dhaka. He indicated that his friend told him not to go to his home or those people would find him. When queried which people he was referring to he commented the BNP people and [Mr A1]. The Tribunal asked him where he went. He replied that he went to [Village 1]. He said he went to [Village 1] to save his life because the BNP people were looking for him. When pressed why he chose to go to [Village 1] he said because there was nowhere he could stay in his area. When asked where he stayed in [Village 1] he indicated that [Mr B] had a shop there. When the Tribunal queried [the applicant] that he was saying he had already met [Mr B] at this time he replied ‘yes’.
The Tribunal put to [the applicant] that it was not clear to the Tribunal when the claimed murder occurred and asked him when it occurred. He indicated that it happened in December 2008. When queried that this seems to conflict with the timeline for the claimed incidents with [Ms A] and asked when it happened in-among the events of July to November 2008 in relation to [Ms A] [the applicant] said he can’t remember but it happened in between these incidents. The Tribunal queried [the applicant] how he could be back at the shop in December 2008 if his father had disowned him by that time. He replied that he told his father that he would not continue the relationship and asked his father to give him another opportunity. The Tribunal put to [the applicant] that this is very different to what he had said earlier in the hearing. He replied that he understood it is not a good relationship but it is what happened to him. The Tribunal asked [the applicant] why the Iman, [Mr A1] and the village head would have tolerated him going back to work at the shop. [The applicant] replied that he could not link the incidents but they did not allow him to stay in the area and after the salish he left the area and went to [Village 1]. He commented that the Imams are looking for him and if they find him they will kill him. He added that they did not allow him to pray in the mosque.
Following careful consideration of all the evidence in relation to these matters the Tribunal concludes that [the applicant] was not in an inter-faith relationship with a Christian girl and did not witness the murder of a BNP member. The Tribunal finds that [the applicant] has concocted these claims. Accordingly the Tribunal finds that [the applicant] does not face real chance of suffering persecution involving serious harm or a real risk of suffering significant harm from [Mr A1], Imams, village heads, Madrasa students, Islamic extremists, the Muslim community or the community generally should he return to Bangladesh because he was in an inter-faith relationship with a Christian girl named [Ms A] and/or because he contravened social or religious values regarding sexual conduct; or from AL or BNP members because he witnessed the murder of a BNP member.
In reaching this conclusion, apart from the significant inconsistencies in his evidence noted above, the Tribunal has given significant weight to the fact that [the applicant] has not been able to establish a plausible broad timeline for the incidents that he claimed occurred as part of these claimed events. While the Tribunal accepts that it may be difficult for [the applicant], given his background and the passage of time, to recall the dates when key events occurred, the Tribunal finds that the broad outlines of each event, as described by [the applicant], do not fit together. Essentially, this is because [the applicant] has asserted that both events resulted in him effectively being prohibited or prevented from residing in his home area. He claimed that after he and [Ms A] were found in Khulna and forcibly returned to his village, there was a salish where he was effectively banished from the village under threat of death, and that he had been disowned by his adoptive father. While he has indicated he is unsure of the precise order of events in relation to the salish and his detention for a month by police, he indicates that these two events were sequential and after them he was told to leave his home village, was beaten and then found by the side of the road by [Mr B], who took him to [Village 1] for about a year, before he departed Bangladesh for [Country 2]. He indicated that he could not speak with [Ms A] or anyone else or return to his village because Madrasa students were looking for him because he was seen as an enemy of Islam and [Mr A1] was still after him, and he would be killed by Imams and others who were looking for him. This precludes the claimed murder incident having occurred after these events because [the applicant] could not have been back working at his father’s shop, where he claims he was when the alleged murder occurred, because his presence there would have resulted in him being attacked by [Mr A1] and/or his associates or Madrasa students acting on the instructions of the Imams and/or village head who he claimed had agreed at the salish that he must leave the area and could be beaten and/or killed.
If the claimed murder occurred before these events, however, [the applicant] being back working at his father’s shop, in defiance of the claimed instruction by AL members that he leave the area (or country) is implausible in light of his claims in his written statements that when he returned from Dhaka to his home area (Jessore) after fleeing to Dhaka for a month he kept a very low profile because ANP and BNP cadres were looking for him; and his claims at the hearing that police never spoke with him about the murder that occurred outside his shop because, while they were looking for him, they could not find him so could not talk with him. As noted above [the applicant] commented that AL had told him to leave the area, the BNP had told him to stay and the Imam of the mosque had told him he could be killed because he had converted to Christianity. When queried why he had returned to his village after spending a month in Dhaka [the applicant] commented that a friend told him not to go home or the people who were looking for him would find him so he went to [Village 1]. The Tribunal finds it implausible, therefore, that after returning from Dhaka [the applicant] went back to work at his father’s shop where he again came into contact with [Ms A], leading to the series of events that he claimed resulted in him being found by [Mr B], crying by the side of the road after having been beaten by [Mr A1], and being taken by [Mr B] to [Village 1]. The Tribunal also finds implausible [the applicant’s] claim at the hearing, when presented with these issues, that after the salish his father, even though he had previously disowned him, gave him another opportunity, so he returned to the shop. If his claims that he had been ordered to leave the village including by the village heads and was under threat of death from Imams, Madrasa students and [Mr A1] was true, even if his father forgave him and gave him another chance, he would not have been able to return to the shop without being immediately attacked by [Mr A1] and/or his agents and/or the Iman and his agents (such as the Madrasa students) and killed or run out of the village.
In reaching the conclusion that [the applicant] has concocted his claims that he was in an inter-faith relationship with a Christian girl and that he witnessed the murder of a BNP member, the Tribunal has considered the English translations of the claimed ‘Application for filing a General Diary’ document purportedly submitted by [Mr A1] [in] July 2008 and the claimed statement by [Mr C], Member of the ‘Union Council’ of [a specified region in] Jessore, dated [in] May 2019, submitted to the Tribunal on 3 September 2019. The Tribunal cannot ascertain the provenance of these documents but, noting that [the applicant] indicated that a friend had previously arranged for an affidavit to be prepared in his father’s name that his father did not prepare and which [the applicant] stated was not true, and DFAT advice, put to [the applicant] at the hearing, that document fraud is common in Bangladesh and that the use of fraudulent documents and fraudulently obtained genuine documents is widespread,[13] the Tribunal gives these documents no weight.
[13] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 5.39-5.44.
The Tribunal has also considered and taken into account the representative’s comments regarding [the applicant’s] background as an illiterate person from a rural background, the passage of time since the claimed incidents occurred, the stresses of his claimed experiences and his travel to Australia and subsequent lengthy immigration, the possible influence of people smugglers on his evidence, and his mental health issues that have resulted in him taking [medication 1], which is used to treat anxiety and major depressive disorders and may cause drowsiness. The Tribunal also notes the comments that [the applicant] has been upset by the recent death of a fellow immigration detainee who was his neighbour at his immigration detention centre in Melbourne. The Tribunal acknowledges that [the applicant] is a vulnerable applicant and has given consideration to this in assessing the relevant evidence in this matter. In this regard, the Tribunal has not expected [the applicant] to provide clear dates of when claimed significant events occurred or to recall the detail of claimed incidents. The Tribunal finds, however, that [the applicant’s] background and vulnerability does not provide an explanation for the Tribunal’s finding above that it is not plausible that the two key events he claimed occurred: that he was effectively banished from his village under threat of death because he had a relationship with a Christian girl, and he fled his village because he feared for his safety and life from both AL and BNP cadres because he witnessed the murder of a BNP member and may have been forced to appear as a witness in relation to this matter; could have occurred, regardless of the order in which they might have occurred or the precise timing of the claimed incidents.
Is [the applicant] at risk of harm because he has converted from Islam to Christianity?
In his statutory declaration of September 2019 [the applicant] raised a new claim – that he had been attracted to and fascinated by the Christian faith since he was in a relationship with [Ms A], and [in] December 2017 he was officially baptised as an Anglican Christian. In her submission of 3 September 2019 the representative states that [the applicant] seeks protection because he is an apostate both due to his relationship with [Ms A] and his conversion to Christianity while in Australia.
As the Tribunal does not accept that [the applicant] was ever in a relationship with a Christian woman named [Ms A], the Tribunal does not accept that he was or would be considered an apostate because of such a relationship. For the same reason, and noting that [the applicant] had not previously mentioned any interest in becoming a Christian, the Tribunal does not accept that [the applicant] was attracted to and fascinated by the Christian faith prior to coming to Australia.
In considering [the applicant’s] claim to face a real chance of suffering persecution involving serious harm due to him being considered an apostate because he has converted from Islam and become a Christian in Australia, the Tribunal is mindful of s.5J(6) of the Act which requires that, 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.
In considering this claim the Tribunal taken into account the various supporting statements made by Christian figures in Australia. These are:
·A statement of 9 January 2019 by [Leader B], who baptised [the applicant] [in] December 2017. [Leader B] indicates that she and her [colleague] had been providing pastoral care to detainees at the [Detention Centre] and that [the applicant] had consistently attended the Anglican services at the [centre] and now has a Bible in his own language and has been receiving teaching and support from her and her [colleague] and other Christian detainees. She comments that [the applicant] presents as a good person who professes to be a Christian and is trying to improve his knowledge of the Bible, hindered by his language difficulties.
·A statement dated 10 October 2018 provided by [Leader C] of the [Church 1] which indicates [the applicant] has been attending Bible study that his church runs twice a month in the [detention centre].
·A statement dated 23 January 2019 provided by [Leader D] who indicates that [the applicant] attends the religious celebration, called the Mass, which Christians as well as Hindus and Muslims attend at the [centre]. He indicates that he can commend [the applicant] as someone of strong character and personality.
·Statements provided on 7 March 2019 and 10 September 2019 by [Leader A] of [Denomination 1], who holds the [specified position]in [Denomination 1] and is the [leader] of the [named welfare agency]. [Leader A] also attended the hearing along with a number of other persons as support people for [the applicant]. While [Leader A] asked at the end of the hearing if he could make some comments, as he had not been listed or sworn in as a witness for [the applicant] and the available time for the hearing had expired, the Tribunal declined this request but invited [Leader A] to provide a further written statement if he wished, which he did. In his statement of 7 March 2019 [Leader A] indicated that he has known [the applicant] since October 2018 when [the applicant] began to attend his monthly chapel service at the [centre]. He comments that [the applicant] was raised in a Muslim orphanage and has found Islam too hard with too many rules, no freedom and that it promoted violence against non-Muslims. He indicates that that since [the applicant] has been in detention in Australia he has found through the kindness of Christian people that Christianity offers him a better religion to follow. [Leader A] opines that [the applicant] faces persecution, torture and death should he be returned to Bangladesh because he has converted to Christianity, citing various country information. He notes, however, that Bangladesh is a secular country, that religious conversion is not forbidden by law and that it is reported that there is a growing number of Muslims in Bangladesh who have converted to Christianity, commenting that it is estimated that as many as 91,000 Muslims across Bangladesh have converted to Christianity in just six years, knowing it could cost them their lives. In his post-hearing statement [Leader A] indicates that [the applicant] continues to attend his monthly chapel service at [the detention centre] where [Leader A] plays [an instrument] and they sing songs and choruses about Jesus. He indicates that [the applicant] likes participating in this, clapping his hands in songs as appropriate and singing as best he can with his limited English, and giving a hearty ‘Amen’ at the end of prayers. He comments that [the applicant] is not ashamed for the two of them to be seen praying together in front of the other detainees, visitors and guards.
·A statement dated 17 September 2018 by [Leader E] of [Church 2] which indicates that [Leader E] visits the [detention centre] every week and has found [the applicant] to be a gentleman of very good manners and values who is sincere in his desire to settle in Australia. She comments that he is faithful in his attendance at the weekly celebration of Mass and desires to live life based on good Christian values.
At the hearing the Tribunal advised [the applicant] of the implications of s.5J(6) of the Act and asked him why he had decided to become Baptised as a Christian in December 2017. [The applicant] replied that he has no mum or dad and was not allowed to pray over there. He said when he started going to church he liked it and from his heart he accepted the Bible. He indicated that he had been attending church services for about 5-7 months before he was Baptised. The Tribunal queried [the applicant] about his comment that he was not able to pray in Bangladesh, asking him why he couldn’t pray in Dhaka and in [Village 1]. He said he did not feel like going as he was disturbed by Muslim people and their activities. He added that they said he converted to Christianity and forbade him from praying. The Tribunal queried him that he had claimed his problems were caused by [Mr A1], a Christian. [The applicant] replied ‘yes’ and commented that of course he feels animosity and anger towards [Mr A1]. The Tribunal asked [the applicant] why he wanted to be a member of the religion of someone who he states ruined his life. He replied that now he is in Australia and has the Bible in front of him he finds he likes this Bible. He added that Jesus says come to me anytime, I will accept you. The Tribunal asked [the applicant] if he went to the mosque while he was in [Country 2]. He replied ‘no’. When asked why not he said he did not like to go and when people told him to pray he refused. When asked why, he commented that they did not know about him. The Tribunal put to [the applicant] that in [Country 2] [a majority] of people are Muslims and there are a lot of mosques and asked why did he not feel he could re-embrace Islam there.[14] He replied that he does not like to practise the Muslim religion and has not done so for the last 5-6 years. In this regard the Tribunal notes that [the applicant] has been in Australia for 7 years since November 2012.
[14] [Source deleted.]
Noting the supporting letters regarding [the applicant’s] Bible studies, the Tribunal asked him what his favourite passages from the Bible are. He replied that he is not a literate person and can’t read the Bible properly, so whatever his Fathers told him he can tell the Tribunal. He said he has a Bengali Bible on his mobile so whatever they are talking about he listens to on that Bengali Bible. The Tribunal asked what his favourites are to listen to. He said Father told to go to the Father and pray in front of him and he also said don’t pray wrong things, don’t pray in the middle of the road, come to me and pray. He added that Jesus said he came to this world for us and Jesus cured some people who had some eyesight problem. He said one day a person was fishing over there and did not get any fish and Jesus told that person to come here and try fishing here. He added Jesus also said you can be hungry but put some oil on your head and clean your mouth so people will see you are pure. He commented in the Muslim religion there’s a thing where people don’t eat for a month – they are fasting, but in the Bible it says you can fast but at the same time you put oil on the head, and clean your face so people do not see you as a nervous person.

The Tribunal asked [the applicant] what were some of the key events in the last week of Jesus’ life. [The applicant] replied that he is not an educated person and is still trying to learn these things. He said his Fathers are here and he asks them these things. He added that now he only believes the Bible and he reads it every day and tries to understand.
The Tribunal asked [the applicant] what he fears if he had to return to Bangladesh as a Christian. He said he would have no support from anyone and did not know what would happen to him. He added that he has been in detention for seven years and can’t go back, has converted to Christianity and wants to stay. The Tribunal put to [the applicant] country information from DFAT indicating that it is not illegal in Bangladesh to change religion, including from Islam to Christianity; 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.[15] [The applicant] responded that if he returned to Bangladesh he would be killed. He said he has no family and no support in Bangladesh and those looking for him would kill him.
[15] DFAT Country Information Report, Bangladesh, 22 August 2019, sections 3.27-3.28, 3.33-3.35 and 3.55-3.60.
Having considered [the applicant’s] circumstances and his evidence at the hearing, while the Tribunal accepts that [the applicant] has been participating in Christian services and activities in Australia since 2017 and was Baptised in December 2017, the Tribunal is not satisfied that [the applicant] has done this otherwise than for the purposes of strengthening his claim to be a refugee. Accordingly the Tribunal must disregard this conduct (in accordance with s.5J(6) of the Act). In reaching this conclusion the Tribunal finds that [the applicant] had a strong incentive to engage in these activities following the delegate’s decision to refuse his protection visa application on 12 July 2016, on the basis that she found his claims to have been in an inter-faith relationship with a Christian woman and to be perceived by the AL and the BNP to be opposed to them because the AL suspected he will inform on them, and because he refused to be a witness for the BNP respectively in relation to the claimed murder incident, had be fabricated in their entirety, and did not accept that he had been disowned by his family. 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 these services without being committed to them. While acknowledging [the applicant] has only had five years’ schooling and claims to be illiterate, given [the applicant] claims to have been receiving tuition in the Bible since early-mid 2017 and to have had a Bengali language Bible which he reads every day and to ‘listen’ to the Bengali Bible on his mobile phone, the Tribunal would expect that [the applicant] would have been able to mention some of the key events of the last week of Jesus’ life, such as Palm Sunday, the Last Supper, the Crucifixion and Jesus’ Resurrection. While [the applicant] was able to recall the gist of a few passages from the Bible, the Tribunal did not consider [the applicant’s] responses to the questions put to him at the hearing were indicative of what would be expected from a genuine convert from Islam to Christianity who had been studying the Bible for over two years.
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 an Anglican Christian in December 2017 and has been attending church services and participating in Bible studies and other Christian activities since 2017 otherwise than for the purpose of strengthening his claim to be a refugee and therefore for protection generally. Having reached this finding, the Tribunal, noting its findings above that the applicant was not in an inter-faith relationship with a Christian girl and therefore was not considered to be an apostate on that basis or disowned by his family or prevented from praying at local mosques or forced to leave his home area by Imams, Madrasa students, members of the village council or [Mr A1], or Muslim community members or community members generally under threat that he would be beaten or killed, also does not accept that [the applicant], should he be returned to Bangladesh, would seek to practise as an Anglican or any other branch of Christian faith, but considers that he would revert to practising as a Muslim. Consequently, the Tribunal does not consider that [the applicant] would face a real risk of being considered an apostate by Imams or Madrassa students or Islamic extremists or by the Muslim community or Bangladeshi community generally, or would be ostracised by his family or the 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 considered whether [the applicant] having become Baptised as a Christian in Australia and having participated in Christian activities in Australia might become known to community members in [Country 2] 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 and the statements indicating that he has been observed openly engaging in Christian activities, the Tribunal considers it is possible that community members in Bangladesh may 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, noting the statements also indicate that Hindus and Muslims in the detention centre environment also participate in religious activities organised by Christians in the detention centre environment as an inter-faith activity, finds there is nothing before the Tribunal to indicate that [the applicant] would face significant harm in Bangladesh from anyone in Bangladesh because of his church related activities in Australia, particularly given the Tribunal’s finding that [the applicant] would not practice as a Christian on return to [Country 2]. 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 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 the ‘data breach’ and as a returned asylum seeking who will be perceived as wealthy?
At the hearing the Tribunal asked [the applicant] whether he still has concerns regarding the Departmental ‘data breach’ (which occurred in 10 February 2014). [The applicant] replied ‘yes, of course’. The Tribunal commented that this issue had been addressed in the delegate’s decision record (at page 20). 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]. Accordingly, the Department wrote to [the applicant] on 12 March 2014 advising him of the data breach. The delegate’s decision record notes that while [the applicant] did not raise any protection claims in response to that letter, the post protection visa interview submission of 31 May 2016 by his then representative ([Business 1]), while noting that the breach did not include any details of visa status or protection claims, asserted there is a strong likelihood that authorities in Bangladesh would be aware that [the applicant] has sought asylum in Australia and therefore the data breach has increased the risk of harm to which [the applicant] would be subjected should he be returned to Bangladesh. 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 this 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:[16]
·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.
·DFAT is aware of cases, both recent and historical, of people leaving Bangladesh on false passports to seek work abroad. In some cases, people on false passports have successfully lived and worked abroad for years before being detected. The false passports used in these cases are often genuine passports that have been fraudulently obtained, in some cases through paying bribes to officials. If such cases cause media attention, it is likely that people who are returned for holding fraudulently obtained documents will be detained and questioned by police. DFAT is not aware, however, of a substantial pattern of holders of fraudulent passports being detained or questioned in this way.
·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.
[16] 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 applicant] commented that he has a problem because he has no mum or dad, no home, is now a Christian and because BNP are looking for him. For the reasons discussed above, the Tribunal does not accept that [the applicant] has a problem for any of these reasons. 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 returned to Bangladesh as a failed asylum seeker.
In relation to the additional matter raised by [the applicant’s] current representative, that he would be at risk of harm because as a failed asylum seeker from Australia he would be perceived to be wealthy, the Tribunal does not accept that this would be the case. This is because [the applicant] has been held in immigration detention for the 7 years since his arrival in Australia and therefore has had no opportunity to work in Australia. He would be able to inform anyone inquiring about his activities in Australia of this fact.
Is [the applicant] at risk of harm because he had/has no political affiliation or allegiance?
While the 14 March 2014 interview with a Departmental case officer documented [the applicant] as stating that he joined the BNP after [an event] in 2007, in the post protection visa interview submission of 31 May 2016 by [the applicant’s] then representative ([Business 1]) it was stated that ’Our Client claims to have no political affiliation and is not a member of a (sic) BNP or Awami League’. The then representative asserted that ‘in a country riddled with corruption, protection and well-being are secured by alignment with a localised political powerbase. Our Client’s non-partisanship places him at constant risk of harassment, abuse and extortion from either side of the political spectrum’. The claim that [the applicant] was at risk because a lack of political affiliation with any political party in Bangladesh was repeated in the submission of 3 September 2019 by [the applicant’s] current representative. However, in his third statement of September 2019 [the applicant] indicated (at paragraph 25) that when he began working in the shop at the bazar he became politically involved as a local member of the BNP.
At the hearing the Tribunal queried [the applicant] about these inconsistencies and he indicated he was involved with the BNP. He said he was a local member of the BNP, adding that there was an office of the BNP in the bazar so he became a member because he liked the BNP. He added that he mentioned this during the Departmental interview. In her post-hearing submission of 15 September 2019 the current representative indicated that the advice in her previous submission that [the applicant] was not politically affiliated is not correct and is an error on her behalf. On this basis, the Tribunal finds that [the applicant] was affiliated with the BNP and therefore there is no basis to the claim that [the applicant] is at risk of harm because he has no political affiliation in Bangladesh.
As the Tribunal does not accept that [the applicant] witnessed the murder of a BNP member and refused to give evidence in relation to the matter, the Tribunal does not accept that [the applicant] is at risk of harm from BNP members for refusing to give evidence in relation to the matter (or that he is at risk of harm from ANP members because they threatened to kill him if he gave evidence in the matter).
The Tribunal notes the DFAT advice above that for those returning to Bangladesh who have a particular political profile, particularly 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 claimed membership of 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. Similarly, the Tribunal finds that there is nothing in [the applicant’s] evidence to indicate or suggest that his claimed membership of 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.
Is [the applicant] at risk of harm because he has no family support and, as such, will not be able to subsist?
At the hearing [the applicant] said he is not able to go back to Bangladesh, commenting that he has been in detention for the last 7 years and is fearful to return. He indicated he has been on medication and has no memory.
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 to assist with his current mental state 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 also notes that [the applicant] has employment skills, having worked as [an occupation 1] in [Country 2], and notes the DFAT advice above regarding the assistance provided by IOM to assist Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. The Tribunal finds that the available information does not support the contention that [the applicant] would be unable to subsist if he returned to Bangladesh.
Conclusions
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).

100. 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).
101. 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.[17]
[17] 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].
102. 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). 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).

103. 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).
DECISION
104. 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.
…

[2019] AATA 6782

11 October 2019

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