1823970 (Refugee)

1823970 (Refugee) [2019] AATA 6561 (14 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823970
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Michael Hawkins
DATE:14 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 November 2019 at 11:28am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Muslim convert to Christianity in Australia – level of understanding and engagement – actual or imputed political opinion – low-level member of opposition political party – relationship with woman of family linked to government party – attacks and threats to applicant and family by woman’s family and associates – woman’s beating, forced marriage and suicide – fear of harm from step-mother over land dispute – credibility – inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 11 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 1 December 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant sought a review of the delegate’s decision to the Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision not to grant the applicant a protection visa on 19 September 2016.
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, and Country Information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a single male born in [Village], Jessore District, in Division Khulna in Bangladesh.
The applicant is a national of Bangladesh and Bengali by ethnicity.
The applicant claims he has lived all of his life in Bangladesh prior to his journey to Australia.
The applicant claims that his mother is deceased.
The applicant claims that his father, his stepmother, his half-brother and half-sister reside in the applicant’s home village.
The applicant claims that his sister, [Ms A], is married and resides in another village in the Jessore District.
The applicant claims to have resided in his home village from birth until June 2011.
The applicant claims that in June 2011, he moved to Dhaka where he worked for one year.
The applicant claims that in June 2012, he moved to Technaf where he resided and worked for three months until September 2012.
The applicant claims that in December 1998, he completed [number] years of primary education at a school in [Village].
The applicant claims that he worked with his father in the fields from 1999 to 2008 and in a [workplace 1] from 2008 to 2011.
The applicant claims that from June 2011 to June 2012, he worked in Dhaka in [work sector] in [job tasks].
The applicant claims that from June 2012 to September 2012 he worked in a [workplace 2] in [Location] in Technaf.
The applicant claims to have left Bangladesh by a [vessel] [in] September 2012.
The applicant claims that the boat sailed along the coast of [Country 1] and [Country 2]. The applicant claims that he landed in [Country 3] where he stayed for two days. In [Country 3], he boarded a boat headed for Australia.
The boat was intercepted by the Australian authorities and the applicant was brought to Christmas Island [in] October 2012.
The applicant attended an irregular maritime entry arrival entry interview on 31 October 2012.
On 25 January 2013, the applicant was screened into the Australia’s Protection Obligations Assessment process.
On 13 August 2015, the Minister exercised his power under sub-section 46A(2) of the Act to allow the applicant to lodge a valid application.
On 3 September 2015, the applicant was invited to apply for a Temporary Protection (Sub-Class 785) Visa (TPV) or a Safe Haven Enterprise (Sub-Class 790) Visa (SHEV).
On 26 November 2015, the applicant lodged an application for a Safe Haven Enterprise (Sub-Class 790) Visa (SHEV). On 21 December 2015, the application for a Safe Haven Enterprise (Sub-Class 790) Visa (SHEV) was acknowledged as valid.
On 20 April 2016, the applicant submitted an additional Statement of Claims in support of his SHEV application.
Claims:
The applicant’s claims are set out in two documents.
From his Statement dated 19 November 2015, his claims are summarised as follows:
The applicant claims he is a Bangladesh citizen and an ethnic Bengali.
The applicant claims he is single. The applicant claims he was born in [Village], Jessore District in Division Khulna in Bangladesh.
The applicant claims that he and his family, including his father and uncle, are aligned to the Bangladesh Nationalist Party (BNP).
The applicant claims that he was a supporter of the BNP and that in 2006 he was an Acting President of the local BNP committee for approximately six months when its President went abroad for medical treatment.
The applicant claims his uncle was a BNP member and an elected member of the [Village] Union Council.
The applicant claims he left Bangladesh because he suffered harm at the hands of the Awami League (AL) members because of his affiliation with the BNP.
The applicant claims that in 2008, he developed a relationship with a girl, called [Ms B], whose family are linked to the AL Party.
The applicant claims he left Bangladesh because he received death threats and suffered harm from [Ms B]’s family on account of his relationship with [Ms B].
He claims [Ms B]’s family did not approve of the relationship because they were strong AL supporters and the applicant and his family were associated with the BNP.
The applicant claims that he was physically beaten by [Ms B]’s family and that [Ms B]’s family threatened to kill him if he continued seeing [Ms B]. He claims that the threats happened eight to 10 times throughout 2011.
The applicant claims that in January 2011, [Ms B]’s family began beating [Ms B] because of her continued relationship with the applicant.
He claimed that [Ms B]’s family forced her to marry a man and in June 2011 on the night before her wedding, [Ms B] took poison and killed herself.
The applicant claims that after [Ms B]’s death, he fled to Dhaka.
The applicant claims that whilst in Dhaka, he was informed by his family that [Ms B]’s family had hired thugs and killers to continue harassing his family and searching for the applicant.
He claims that [Ms B]’s family forcibly took his uncle’s motorbike, beat his father and demanded money from his father and uncle.
The applicant claims that the ongoing harassment is due to his family’s support of the BNP.
The applicant claims that [Ms B]’s family and other AL members threatened to continue beating members of his family and drive his family from the local area unless his family abandon their commitment to the BNP and supported the AL at the coming election.
The applicant claims that he will be subjected to serious harm if he returns to Bangladesh on account of his association with the BNP and an imputed anti-AL political opinion.
The applicant believes he will receive no protection from the authorities because the AL is in power.
From a Statement dated 20 April 2016, the applicant’s additional written claims are summarised below:
The applicant claims that he is [age] or [age] years old but that he does not know the exact date of his birth.
The applicant claims he was born Muslim but recently changed his religion to Christianity.
The applicant claims that when he was growing up, he never had any identity documents. He claims this was common for people in his area. He claims that no one had identity documents and it was not considered important.
The applicant claims that when he came to Australia, the Department of Immigration asked him to provide proof of his identity. He claims he asked his father in Bangladesh to assist him to obtain proof of his identity and Bangladeshi citizenship.
The applicant claims that he did not know the process his father followed to obtain the documents. The documents were posted to Immigration. The documents were in English and the applicant has not been able to read the information on the papers.
The applicant claims that when the information on the Birth Certificate was interpreted to him, he realised it had incorrect information regarding his date of birth, so he had to arrange for another one with his correct date of birth.
The applicant claims that the name of his mother on the Birth Certificate is the name of his stepmother. He claims this must have been the information given to the authorities who issued the Birth Certificate.
The applicant claims that he does not know why there are errors on his documents. He claims his father also would not have had the opportunity to read the documents to check that the information is correct as he is illiterate. He claims his father requested the documents from the government office and when he received the documents he sent them directly to Immigration. The applicant confirms that his name is [Name] and that he was born in [Year]. He claims that he is [age] or [age] years old. He claims he is a Bangladeshi citizen and grew up in [Village] in Jessore District. He claims he is able to answer questions about the area and his childhood to confirm that he is from Bangladesh.
Incorrect Information
The applicant claims he submitted a letter from a lawyer in Bangladesh which said that he had a case pending against him in Bangladesh. The applicant states this information is not correct. He claims that at the time he requested this letter from the lawyer, he was very traumatised and stressed that he would be sent back to Bangladesh. His understanding was that he needed to have documents in order for the case to be approved and he was very fearful of being sent back to Bangladesh. He claims that as far as he is aware, there is no case pending against him with the authorities in Bangladesh.
Changes to Applicant’s Circumstances Since Lodging his SHEV Application
The applicant claims he was raised as a Sunni Muslim, but has now changed his religion to Christianity.
The applicant claims that in Bangladesh, he had Christian friends and always thought they were very nice people.
The applicant claims he had a copy of the Bible in his room for approximately one year. He claims his other friends were reading it and sometimes he would also pick it up to read it. He claims he has read the Bible in bits and pieces.
The applicant claims that the thing he likes about Christianity is that it is based on love and respect and that they care for other people. He claims that he sees Christianity as a peaceful religion. He claims that you see in other parts of the world that Muslims fight each other and there are bombs and violence.
The applicant claims there is a Christian Priest called Father [C] who comes to [the detention centre] every Sunday.
The applicant claims that he has been to three services so far and he feels sure he wants to convert. He claims he had liked this religion for a long time. He claims Father [C] has said to him he will be baptised at some point next week.
The applicant claims to fear that converting to Christianity will cause additional problems for him if he returns to Bangladesh. He claims his friends in Bangladesh were born Christian so their situation is different, but people like him who convert from Islam to Christianity are in danger of being killed.
In a letter to the Minister for Immigration and Border Protection dated [August] 2014, the applicant was one of 15 Bangladeshi detainees who signed a letter to the Minister in which he recanted his offshore criminality.
Additional Claim Raised in Post-Interview Submission dated 20 May 2016
In early 2014, the Department of Immigration and Border Protection inadvertently published a document on its website that tabulated details regarding a number of people in immigration detention on 31 January 2014. Although the applicant did not articulate claims of harm due to the 2014 data breach in his written Statements of Claims, his Representative submitted, in support of the applicant’s application, that the data breach gives rise to a sur place claim.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms completed and signed on 26 November 2015 (“visa application”);
- Documents submitted by the applicant including:
- Record of entry interview with the Border Force officers dated 31 October 2012;
- Record of interview with the delegate dated 27 April 2016;
- Post delegate interview submission dated 20 May 2016;
- The protection visa decision record (‘delegate’s decision record’) of 11 July 2016;
- The IAA Decision Record (‘IAA decision’) of 19 September 2016;
- The Federal Circuit Court of Australia Order (‘FCC Order’) of [July] 2018;
- The review application form which did include a copy of the delegate’s decision record;
- Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Bangladesh, published on 22 August 2019.
Country of reference/ receiving country
The applicant claims to be a Bangladeshi national. Based on evidence provided to the Department of Immigration and Border Protection (the Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3).
Hearing:
The applicant attended the hearing on 12 September 2019 and a continuation of the hearing on 20 September 2019. He was not represented. The hearing was assisted by an Interpreter in the Bengali and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a Protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Bangladesh. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he is returned to Bangladesh. The harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.

With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Bangladesh.
The Tribunal confirmed that the applicant arrived in Australia [in] October 2012.
The Tribunal confirmed the background of the applicant and his family, as set out above.
The Tribunal noted that the IAA had affirmed the decision of the delegate not to grant the applicant a Protection visa.
File Number 1908956
The Tribunal noted the existence of a second review application lodged after the review application presently being heard.
The Tribunal confirmed with the applicant that it was a duplicate of his present review application.
The Tribunal advised that upon it making a decision pursuant to the present review application, the second application would be considered a repeat application and that the Tribunal would have no jurisdiction to consider it.
s.438 Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at certain folios of the department file would be contrary to the public interest because it contains information relating to an internal working document and business affairs.
A copy of the Certificate was provided to the applicant at the hearing.
The Tribunal has considered the material identified in the certificates and considers the certificate, in relation to folios is not valid. In MZAFZ v MIBP [2016] FCA 1081, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were 'internal working documents'. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words 'internal working documents' disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.
The Tribunal notes that the non-disclosure statement has an additional phrase “and business affairs”. The Tribunal is of the view that those words add nothing to the concept of public interest immunity. The Tribunal finds the certificate invalid.
The Tribunal asked the applicant whether he had any comment to make in relation to the s.438 Notice. He advised that it was satisfactory.
The Tribunal explained the contents of each of the folios to the applicant.
·Identity report: Report confirming who the applicant is. The Tribunal did not have an issue with the applicant’s identity and would not need to rely on the document;
·Interview of 19 February 2019 relating to the identity of applicant: The Tribunal had no issue with identity of the applicant or with who the applicant claimed to be;
·Series of emails relating to applicant and 14 other persons in relation to criminal offences: Emails relating to criminal proceedings pending abroad. The applicant replied to the department that there are no criminal proceedings pending in Bangladesh. The only document that the Tribunal is interested in is the letter given by the applicant to the department;
·Email about the applicant’s police clearance from Bangladesh: A letter obtained from the applicant’s lawyer;
·List of Boat ID numbers for all persons arriving from Bangladesh: List was given to the Tribunal by the applicant’s previous representative;
·IAA file: Federal Circuit Court of Australia quashed the decision of the IAA holding that it had no authority to hear the applicant’s review;
·Two letters: Letters given to the Tribunal from the applicant’s representative [Mr D] in Bangladesh.
The Tribunal noted that the documents that it was interested in had already been provided by the Applicant to the Tribunal or Department. There was no issue with the identity documents. The applicant agreed that he had his own documents.
The Tribunal noted that the applicant’s claims were set out in two Statements dated 19 November 2015 and 20 April 2016. The Tribunal asked the applicant whether he was still familiar with those documents and whether he wished to amend or correct anything in his Statements. The applicant stated that he was and that he did not need to change it.
The Tribunal summarised the applicant’s claims as follows:
·     The applicant claims fear of persecution by reason of his actual and imputed political opinion opposed to the ruling Awami League Party.
·     The applicant claims fear of persecution by reason of his actual political opinion as a member of the BNP.
·     The applicant claims fear of persecution by reason of his membership of a particular social group on account of his relationship with a girl whose family are linked to the Awami League Party.
·     The applicant claims fear of persecution by reason of his religion on account of his conversion from Islam to Christianity.
·     The applicant claims fear of persecution by reason of the Department’s data breach and also on account of his being a returned asylum seeker.
The applicant confirmed that the above summary of his claims were all accurate and were complete.
The Tribunal noted that there was a written claim that as a child he was physically hurt and prevented from attending school by his stepmother who wanted to prevent him from inheriting his father’s property. The applicant confirmed that was correct.
The Tribunal noted that the applicant intended to call a witness being a Reverend [F]. Accordingly, it elected to discuss the issue of the applicant’s Christianity first.
The Tribunal asked the applicant when he first became interested in Christianity. The applicant replied that it was in 2015 when he decided to go for it.
The Tribunal confirmed that it was therefore after he had made his SHEV application. The applicant replied that he was interested in Christianity before then.
The Tribunal noted that the applicant had referred to his Christianity claims in his second Statement in April 2016 but that his claims in relation to Christianity were not referenced in his Statement of 26 November 2015, despite him having decided to “go for it”. The Tribunal asked the applicant why that was the case. The applicant replied that he mentioned his Christianity to the Delegate in his interview.
The Tribunal acknowledged that, but asked him again why those claims had not been referenced in his initial Statement attached to his SHEV application form. The applicant responded that he told his lawyer about it and blamed his lawyer for not including reference to it in the SHEV application.

100. The Tribunal noted the Statement dated 20 April 2016 wherein the applicant claimed to have been to church three times at that stage. It did not appear to the Tribunal that he had any active engagement in Christianity in 2015.
101. The Tribunal noted that the applicant stated that Father [C] said he would be baptised the following week, but noted that he was not actually baptised until [July] 2017, more than a year later. The Tribunal asked why that was the case. The applicant replied that he was transferred to [another] Detention Centre after the SHEV interview on 27 April 2016.
102. The Tribunal noted that the applicant had told the Delegate that he was a Catholic, however, he was actually baptised as an Anglican. The Tribunal asked the applicant to reconcile that difference. The applicant responded by stating that he decided to become an Anglican instead.
103. Asked why that was, the applicant replied that he originally did not know much about religion, but now knows more about it and decided to become an Anglican.
104. The Tribunal asked the applicant why he considered becoming a Christian. The applicant responded by stating that he started liking Christianity, fell in love with it and stated that it made him feel good.
105. The Tribunal asked the applicant whether he went to church. The applicant replied that he went every week and that he was often taken out of detention to go to services.
106. The Tribunal noted the applicant’s understanding of the Holy Trinity and when asked what he understood about Christianity, he replied that there is a celebration in December and that he loves God.
107. At this juncture, the Tribunal took evidence from the applicant’s witness, the Reverend [F].
108. The Tribunal enquired of the witness how long she had known the applicant. She replied that she has known him since he went to [the second detention centre]. She noted that he attends Christian Fellowship.
109. The Tribunal invited the applicant to comment upon her view of the applicant’s commitment to Christianity. The witness replied that that was a hard question to answer. She noted that he attends Fellowship willingly and that he appears to be a gentle person. She believes that he wants to understand the scriptures.
110. The Tribunal asked the witness why she believes that the applicant wants to change from Islam to Christianity. The witness replied that the applicant wanted hope and believed that a new faith gave him that hope.
111. The witness confirmed that he had been baptised.
112. Upon enquiry, the witness confirmed that the applicant would understand the significance of baptism. She stated that she believes he has integrity and that he should understand concepts such as Christmas, Easter, the Holy Trinity and baptism.
113. The Tribunal discussed with the witness its concern that perhaps the applicant had become engaged in Christianity in order to enhance his protection claims, that is to improve his prospects of not returning to Bangladesh. The witness responded that she is confident that his intentions are genuine and that avoidance of returning to Bangladesh is not the reason for him becoming Christian.
114. The Tribunal thanked the witness for her evidence and her time.
115. The Tribunal asked the applicant what he understood of baptism. The applicant replied that to be a Christian, he must be baptised. He stated that other people say that he is not a Christian until he is baptised.
116. The Tribunal asked the applicant about his understanding of Christmas. He replied that it is a celebration with family and children.
117. The Tribunal asked the applicant his understanding of Easter. He replied that you have Good Friday when God died and he came back on the Sunday.
118. The Tribunal discussed its concern with the applicant that it is possible that the applicant has become engaged in Christianity for the purpose of enhancing his protection claims - that is, making his claims to remain in Australia stronger. The applicant replied that that was not the case and that it has nothing to do with his Visa application. He states that he really loves being a Christian.
119. The Tribunal then asked the applicant what it was that he actually feared. The applicant replied that by his converting from Islam, he states that no one will help him. He stated that his family will be under pressure and won’t be allowed to go to the mosque. He states that he will be in trouble. When asked what sort of trouble, the applicant replied that small groups and religious leaders who won’t tolerate his conversion will seek to harm him.
120. The applicant stated that he has no fear of his family as his family have cut him off. He confirmed that his family have made no threats to him.
121. The Tribunal discussed Country Information with the applicant contained in the DFAT Report.
Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people. Religious minorities reside throughout the country in small numbers.[1]
[1] DFAT Report, paragraph 3.27

The Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. The Constitution also commits the state to upholding secularism by not granting political status in favour of any religion, by prohibiting the abuse of religion for political purposes, and by prohibiting discrimination or persecution of persons protecting any religion. It provides for the right to profess, practise, or propagate all religions ‘subject to law, public order, and morality’, and states religious communities or denominations have the right to establish, maintain and manage their religious institutions. The Constitution stipulates that no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which they do not belong.[2]

There are no laws prohibiting religious conversion in Bangladesh. DFAT assesses that individuals converting from Islam to another religion (generally Christianity) are more likely to face societal pressure than are individuals converting to Islam. Rumours that Christian churches are seeking to convert Muslims have occasionally led to localised violence against Christian individuals and institutions. In separate incidents in early 2016, Islamist militants murdered Christian converts in Jhenaidah, west of Dhaka, and in Kurigram, northern Bangladesh.[3]

DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections. Indigenous people who convert often do so in the context of community conversions, which carries a lower risk because Christian organisations are likely to integrate themselves into the communities providing schools, healthcare or other facilities. A lone convert in a smaller community would be likely to face a greater risk.[4]
[2] DFAT Report, paragraph 3.28
[3] DFAT Report, paragraph 3.33
[4] DFAT Report, paragraph 3.35

122. The Tribunal noted that his family don’t want to know him, so there are no threats from his family. Invited to comment on that, the applicant replied that people will kill him. The Tribunal asked him which people. He replied they are unidentified people, religious leaders in the village who will tell others to kill him.
123. The Tribunal referred to paragraph 3.59 and 3.60 of the DFAT Report.
The small-scale localised attacks carried out by Islamist militant groups against minority religious and social groups across the country in 2013-16 killed or seriously injured several Christians. Authorities despatched police to protect churches and clergy in response to the attacks, and in response to death threats made by militants. Isolated attacks and threats by militants against Christians continue to be reported, but these claims sometimes lack credibility. For example, in December 2017 a Catholic priest was reported to have been abducted in the northeast, subsequently turned up alive in Sylhet after claiming to have escaped his kidnappers. At a subsequent press conference, police accused the priest of staging the kidnapping, claiming to have CCTV footage of him checking into hotels and riding his own motorcycle during his absence.

DFAT assesses that Christians face a low risk of societal violence in the form of occasional localised incidents. This risk is higher for Christians who convert from Islam in the context of a lone conversion without the support of their community or family, but the extent of the risk would then depend on individual circumstances. Like other minorities, Christians may face a risk of sporadic attacks from Islamist militants.

124. Asked to comment on that, the applicant replied that he wouldn’t be able to get help from anyone.
125. The Tribunal noted media reports handed up to the Tribunal at the beginning of the hearing, together with a copy of his Certificate of Baptism, and letters of support from the Reverend [F] and her husband, [Mr F], together with a letter of support from the General Manager of [Organisation].
126. The media articles included an article from the Christian Post headed ‘Islamic Radicals Slaughtering Christians in Bangladesh, says Bishop’, and a second article from the online news service Asia News.IT headed ‘I, A Muslim who Converted to Christianity, Rejected by Family and Society’.
127. The Tribunal asked the applicant the source of these two media articles. The applicant replied that they were given to him by a friend. The Tribunal undertook to consider them.
128. The Tribunal turned to the matter of the applicant’s engagement with the BNP.
129. The Tribunal asked the applicant when he joined the BNP. The applicant replied that the family was always involved.
130. The Tribunal asked when he joined the BNP. He replied around 2006. He joined a community group.
131. The Tribunal asked whether he joined at the Upazila level. He replied no.
132. The Tribunal asked the applicant where do community groups fit into the structure of the BNP. It evidently isn’t at the Upazila level, was it at the union level? He replied it was at community level.
133. The Tribunal referred to the provisions of the Constitution of the BNP[5], noting from the extract of the Constitution below the existence of upazilas and union executive committees.
[5] council and upazila/thana executive committee
The upazila or thana council will be formed with the members of all union executive committees under a thana/upazila . This council will elect an upazila/thana executive committee from its members with maximum 101 members including one president, five vice presidents, one general secretary, two joint secretaries, one organizing secretary, two assistant organizing secretaries, one publicity secretary, one office secretary, one assistant office secretary and one treasurer for two years. The zilla committee will approve the upazila or thana committee.

134. The applicant stated that his organisation was only at community level. The applicant added that it is not a very high position and that it existed only at community level.
135. The Tribunal asked what the community group did and what did he do as Acting President of it. He replied that he talked with people, found out what they needed and showed people how to join.
136. The Tribunal asked the applicant whether he filled-in an application form to join the BNP. He replied that he did not. The Tribunal noted the Constitution of the BNP and the requirement to complete an application form and pay a fee. The Tribunal referred again to the BNP Constitution. The Tribunal discussed with the applicant extracts from the following provisions of the Constitution of the BNP:[6]
[6] (a) Qualification for membership
(1)Any Bangladeshi citizen of the age of 18 years or above can be primary member of this party. The aspirants have to declare adherence to the party’s proclamation, constitution and programmes.
(2) The application at schedule 1, form ‘a’ of the constitution will be filled up for primary membership. This form will be available at the party office. No other form will be accepted for membership but when not available, printing of same form will be allowed for application of membership,
(3) If the form is accepted for consideration, identification (Schedule 1, Form ‘kha’) will have to be collected as evidence.
(4) Subscription fee is Tk 5 only for primary membership. Annual subscription fee after getting membership is Tk 5 only. The subscription from the members will be taken by receipt and the receipt will be provided from the party’s central office.

(5) Every upazila or thana office at its own locality will preserve the list of members of the party. The party’s central office in Dhaka will preserve as per rules the total number of members, name of members and their address.

The Tribunal noted the joining fee of 5 Tks, and that an annual payment of 5 Tks was required thereafter.

138. The applicant confirmed he did not fill in any application form.
139. The applicant replied that he was not in the limelight. He was just a supporter and attended meetings.
140. The Tribunal asked the applicant whether he had been harmed in any way by virtue of being just a supporter. The applicant replied that he had not been harmed as a supporter.
141. The Tribunal noted this was consistent with Country Information that low level supporters tend not to be victims of assaults and that it tends to be only activists and leaders who are attacked.
142. The Tribunal discussed the following Country Information[7]:
[7] DFAT Report, Section “Political Opinion (Actual or Imputed)
Since it came to power in 2008, the AL has considerably restricted the activities of opposition
political parties, particularly the BNP and JI. These restrictions have included:
-    using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;
-    using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and
-    pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.[8]
DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.[9]
DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.[10]
DFAT understands that Intra-party violence has become far more common than inter-party violence, particularly between AL factions and individuals. In 2018, Odhikar documented 281 cases of AL intra-party violence resulting in 53 fatalities and 3,225 injuries, but only 14 cases of BNP intra-party violence resulting in three deaths and 115 injuries. These figures were roughly equivalent to those of preceding years. DFAT understands that the high frequency and intense nature of AL intra-party violence can be attributed to the party’s control over state institutions in recent times. This domination has led to competition between rival AL factions and individuals for pre-selection as electoral candidates, and therefore access to, and influence on, processes and outcomes of lucrative contracts, tenders and appointments to senior party positions.[11]
[8] DFAT Report, paragraph 3.67
[9] DFAT Report, paragraph 3.70
[10] DFAT Report, paragraph 3.82
[11] DFAT Report, paragraph 3.94

143. The Tribunal noted that the Country Information hadn’t noticeably changed the previous report, except to emphasise that most politically motivated violence appeared to be intra-party related, and most particularly within the AL.
144. Asked to respond to that information, the applicant stated that members of the BNP will always be targeted. He states that as a member of the BNP you can’t do anything.
145. The Tribunal asked the applicant that if he had to go back to Bangladesh, would he continue to be involved with the BNP. The applicant replied that as he has now converted to Christianity, he would not get support from the BNP or his family.
146. The Tribunal noted that in his entry interview, he did not mention any fear of the BNP. He replied that he mentioned it in relation to the girlfriend. He went on to add that he mentioned it but it was not recorded.
147. The Tribunal noted what the applicant stated in his interview as follows:
“I was seeing a girl in Bangladesh and she passed away approximately September/October 2011 - she was being pressured from her family not to marry me and she committed suicide; her father threatened to put a case against me and kill me because of what she did”.

148. The applicant agreed that is what he said and went on to claim that the family tried to extort him by demanding money.
149. The Tribunal noted that he had not mentioned this claim before and again referenced the entry interview and his two signed Statements.
150. The applicant replied stating that he has mentioned it, but has no evidence of it.
151. The Tribunal then referenced documents the applicant had presented to the Department, being various police documents purporting to originate from Bangladesh and containing allegations against him, including implicating him in his former girlfriend’s death.
152. The Tribunal noted that he got these documents from a lawyer in Bangladesh.
153. The applicant replied, stating that the letter was true at that time, as evidence of the extortion, but in April 2016, says he knew it was wrong and did it (obtained it) only because he was stressed.
154. The Tribunal noted that the applicant had advised the Minister by letter dated [August] 2014 that he was recanting his claims of offshore criminality.
155. The Tribunal turned to the matter of the applicant’s former girlfriend. It asked the applicant when he met [Ms B]. He replied that he met her in 2008. He said he used to live close to her and met her all the time.
156. The Tribunal enquired as to what “all the time” meant. He replied that it was not every day, and they usually met at coffee shops. He said they would also talk on the phone after school.
157. The Tribunal asked the applicant whether anyone in the village knew of his friendship with [Ms B]. The applicant replied that he and [Ms B] met secretly from 2008 to 2011.
158. The Tribunal put to the applicant that it had some concerns with this evidence of the secrecy of his relationship. It noted that during the SHEV interview, he had first claimed that he had met [Ms B] often and sometimes every day, including places such as coffee shops and outside in the village. The interviewer also asked whether the relationship was publicly known in the village. At that time, the applicant changed his evidence to say that most of the time they would talk on the phone, did not talk much in public and that no villagers had seen them together publicly. The interviewer suggested that coffee shops and the village were public places, he replied that the coffee shop had a separate compartment where they could meet and they did not talk much in public but would go places like a side alley.
159. The Tribunal asked the applicant to respond to that, noting that his credibility may be in issue. The applicant replied that they did talk over the phone most of the time, but also met in a coffee shop, but not all the time.
160. The Tribunal asked the applicant when [Ms B]’s family found out about their relationship. He replied that they found out in May or June in 2011.
161. The Tribunal asked the applicant to confirm that date. The applicant replied that it was in May or June 2011 that her family found out about the relationship.
162. The Tribunal expressed a further concern that in evidence to the Delegate, he had advised that in February 2010, [Ms B]’s cousins and members of the AL Party, who were friends of [Ms B]’s family, beat him up and threatened to kill him if he continued his contact with [Ms B].
163. The Tribunal invited the applicant to comment on that inconsistency. The applicant replied that they knew a little bit and were suspicious and wanted to warn him off and that is why they beat him up then.
164. The Tribunal expressed its grave concerns about the applicant’s evidence in relation to [Ms B], even the existence of [Ms B], noting that his evidence was frequently changing and inconsistent. It asked the applicant whether he had any evidence, for example, in the form of photos, of [Ms B] or any text messages in his phone. The applicant replied that he did have some in his phone, but that his phone had been damaged and could no longer be accessed.
165. The Tribunal asked the applicant when he ceased seeing [Ms B]. He replied that they stopped seeing each other in April 2011, but still spoke to each other on the telephone.
166. The Tribunal noted that the applicant had claimed that his family members were attacked [in] June 2011 and that their home was attacked [in] July 2011. The Tribunal asked the applicant why, if he had broken up with [Ms B] in April, was there an attack in June and July.
167. The applicant replied that [Ms B]’s family knew they were still talking on the phone. The Tribunal noted the applicant had previously stated the family weren’t aware of the relationship until May or June in 2011, which was after the time the applicant had claimed they actually stopped seeing each other.
168. The Tribunal noted that response and then asked the applicant when [Ms B] passed away. He replied in 2012 or 2013. He added that she died because of her proposed arranged marriage.
169. The Tribunal asked the applicant where he was at the time of learning of her death. He stated he was in a [workplace 1] at Jhikargacha.
170. The Tribunal then referenced the applicant’s protection visa Application where it stated that he was in Dhaka from June 2011 to June 2012 and then in Technaf from June 2012 to September 2012 and that he left for Australia on 25 September 2012.
171. The Tribunal asked again where he was when [Ms B] died.
172. The applicant requested a break and the Tribunal agreed to adjourn the hearing to another day.
173. The hearing resumed on 20 September 2019 at 11:40am.
174. The Tribunal picked up where it had left off discussing the date of [Ms B]’s death and where the applicant was at the time of learning of her death.
175. The Tribunal recapped the attacks on the family in June and July 2011 and reminded the applicant that he had told the Tribunal that those attacks were because the family knew that he and [Ms B] were still together. The Tribunal advised the applicant, however, that he had told the Delegate that those attacks were after [Ms B]’s death.
176. The applicant stated that [Ms B] had not died in 2012 and that he was already in Australia. The Tribunal then asked him again as to when [Ms B] had died. He replied May or June 2011.
177. The Tribunal asked the applicant again where he was at the time of learning of [Ms B]’s death – Was he at his [workplace 1] in Jhikargacha or was he at his uncle’s place? The Tribunal noted that at the interview he had told the Delegate that at the time of the attack on his family following [Ms B]’s death, he was at his uncle’s place and that he had gone there as soon as [Ms B] had died. However, in his written Statement, he had said that he was staying at his [workplace 1] in Jhikargacha at the time of the attack and that he then went to his uncle’s place. Asked to reconcile the apparent inconsistency, the applicant replied that he was at his [workplace 1] and then went to his uncle’s place instead of going home as he was scared.
178. The Tribunal asked the applicant whether he was actually attacked by [Ms B]’s family. He replied that he was threatened by them in January and that that is why he only then rang [Ms B] on the phone.
179. The Tribunal noted that the applicant had previously advised it that the relationship broke up in April and that her family weren’t aware of the relationship until May or June of 2011. The Tribunal noted that he had claimed in his written statement that he had been attacked 10 – 12 times in 2011.
180. The Tribunal reminded the applicant that he had advised it that the attack on the family in June was because [Ms B]’s family knew they were still talking on the phone, but that he had told the Delegate that his family was attacked because [Ms B] was dead. The applicant replied that yes, maybe that is why they attacked the family.
181. The Tribunal asked the applicant whether he still feared harm from his stepmother.
182. The applicant replied that the main reason for the attacks from his stepmother was that his real mother had given him a small parcel of land and the stepmother wanted it.
183. He claimed that he still feared his stepmother at the time he left.
184. The Tribunal noted that this was somewhat different to his claim that his stepmother wanted to prevent him from inheriting his father’s property.
185. The applicant replied that he feared being poisoned by his stepmother who might poison his food.
186. The Tribunal noted that he had managed to live for a long period of time without being poisoned.
187. The applicant added that when he was younger, he didn’t fear for his life, but when he turned [age] they wanted him to sign over the land to them.
188. The Tribunal asked the applicant how old he was when he left home. He replied that he was [age] years old.
189. The Tribunal noted that there was then six years from when he was [age] until he left and that he remained living in the village and at his home until that time, and it appeared that he had not been poisoned during that time. The applicant agreed but stated that they kept asking for the land.
190. The Tribunal noted the applicant’s Representative’s claim in relation to the data breach. It suggested that as his details were released on the Department’s website, state and non-state agents may have been alerted to his presence in Australia and status as a person seeking refugee status and that he will be imputed with a political opinion in conflict with the authorities of Bangladesh.
191. The Tribunal asked the applicant what concerned him about the data breach.
192. The applicant replied that he was concerned about the authorities learning of his Christianity.
193. The Tribunal pointed out to the applicant that that information was not released as part of the data breach, that that data had not been collected and that at the time of the data breach, the applicant was not a Christian.
194. The Tribunal discussed Country Information from the DFAT Report with the applicant.
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 (including for Rohingya) 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.[12]

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.[13]
[12] DFAT Report, paragraph 5.27
[13] DFAT Report, paragraph 5.30

195. The Tribunal noted the applicant’s former Representative’s claim in relation to his illegal departure.
196. The Tribunal shared Country Information from the DFAT Report with the applicant.
DFAT is aware of cases, both recent and historical, of people leaving Bangladesh on false passports to seek work abroad, including Rohingya. 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.[14]
[14] DFAT Report, paragraph 5.28

197. When asked to comment on that Country Information, the applicant again replied that he was concerned about the authorities knowing of his Christianity.
198. The Tribunal asked the applicant whether there was anything else he wanted to share with the Tribunal.
199. The applicant replied that BNP workers are oppressed and that people are being killed.
200. The applicant restated his claim as to Christianity and to conversion. He claimed that in the detention centre, people have seen documents confirming that the applicant has converted to Christianity and he doesn’t know what those people have said to others. He also claimed that pictures have been taken of him coming out of a church. He is concerned by that and concerned that he won’t get support from his government or his party if he has to return to Bangladesh.
Assessment of Claims and evidence, and findings:
201. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
202. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
Credibility
203. 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.

204. 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.

205. The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicant’s evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter. The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.
206. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
207. The evidence of the applicant provided at this hearing was, in very few respects, consistent with evidence previously given to the delegate and to the IAA, but there were numerous instances of inconsistency and contradiction. The Tribunal found the applicant’s evidence unconvincing and, in part, so implausible as to render his claims fanciful and far-fetched.
208. The Tribunal accepts that the applicant grew up and resided in [Village], Jessore District in Khulna Province.
209. The Tribunal accepts that the applicant is a national of Bangladesh and Bengali by ethnicity.
210. The Tribunal accepts that the applicant has lived all of his life in Bangladesh prior to his journey to Australia.
211. The Tribunal accepts that the applicant’s mother is deceased.
212. The Tribunal accepts that the applicant’s father, his stepmother, his half-brother and half-sister reside in the applicant’s home village.
213. The Tribunal accepts that the applicant’s sister, [Ms A], is married and resides in another village in the Jessore District.
214. The Tribunal accepts that the applicant has resided in his home village from birth until June 2011.
215. The Tribunal accepts that in June 2011, he moved to Dhaka where he worked for one year.
216. The Tribunal accepts that in June 2012, he moved to Technaf where he resided and worked for three months until September 2012.
217. The Tribunal accepts that the applicant has completed five years of primary education at a school in [Village].
218. The Tribunal accepts that the applicant worked with his father in the fields from 1999 to 2008 and in a [workplace 1] from 2008 to 2011.
219. The Tribunal accepts that the applicant worked in Dhaka from June 2011 to June 2012 in the [work sector] in [job tasks].
220. The Tribunal accepts that the applicant he worked in [workplace 2] in [Location] in Technaf from June 2012 to September 2012.
221. The Tribunal accepts that he left Bangladesh by a [vessel] [in] September 2012.
222. The Tribunal notes that the applicant has been in detention since his arrival in Australia in 2012. The Tribunal records its sympathy to the applicant for having been in detention for this period of time, but notes the applicant has been pursuing his Visa application through the Department, the Tribunal and the Courts. The Tribunal understands the frustration the applicant must feel.
BNP support
223. The applicant claimed that he and his family were aligned to the BNP. The applicant provided very little information about the BNP other than to say he was involved at a community level. The Tribunal discussed the constitution of the BNP and the process for joining the BNP. The applicant had not signed any application forms or paid any fees. It was clear to the Tribunal that the applicant himself was not a member of the BNP.
224. The applicant claimed to have acted as President of the local BNP committee for approximately six months. Asked what he did whilst acting as President, he stated that he talked with people, found out what they needed and showed people how to join.
225. When further questioned, the applicant again reiterated that he was involved at a very low level, was not in the limelight and was merely a supporter and attended some meetings. The applicant then confirmed that he had not been harmed in any way by virtue of being just a supporter. This directly contradicted his written claim that he suffered harm at the hands of the Awami League members because of his affiliation with the BNP.
226. The Tribunal considered Country Information from the DFAT Report in relation to AL activities and how they impact members of the BNP. The Tribunal noted that under the current AL government, senior members of opposition political parties, particularly the BNP, face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties who participate in demonstrations also face a high risk of arrest and physical violence. Ordinary members of opposition political parties who do not engage in political activities and demonstrations face a low risk of arrest.
227. The Tribunal is satisfied, on the basis of the applicant’s evidence, that he is not a member of the BNP and would not be considered to have the profile of a senior member of the BNP. He has not participated in demonstrations or in political activities other than attending some meetings at a community level. The Tribunal is not persuaded that the applicant’s low level participation as a supporter constitutes active opposition to the AL government and he is therefore unlikely to be targeted by the AL government or its members or officials.
228. The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the AL government, or its members or officials because of his low level support of the BNP, or support at a community level, now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant does not have the profile of a political activist or of a person who actively opposes the AL government.
Relationship with [Ms B]
229. The Tribunal found the applicant’s evidence regarding his relationship with [Ms B] vague, contradictory and implausible.
230. The applicant was unable to provide any physical evidence of the existence of [Ms B].
231. His evidence about how the relationship developed and how they would meet also lacked coherency.
232. The Tribunal has grave concerns about the applicant’s credibility and the genuineness of his claims in relation to a relationship with [Ms B].
233. The Tribunal discussed with the applicant the contents of his entry interview on 31 October 2012. The applicant had claimed to fear harm from the family of a girl who were involved with the Awami League. He stated he was in a relationship with a girl in Bangladesh who later committed suicide in September/October 2011. He claimed she was being pressured by her family not to marry him. He claimed that following her suicide, her father threatened to put a case against him and kill him because of what she did.
234. Subsequent to this entry interview, the applicant presented to the Department some police documents he alleges originated from Bangladesh containing allegations against him and implicating him in the girl’s death. The applicant claimed that he obtained these documents from a lawyer in Bangladesh and that he obtained them only because he believed that he required documentary evidence of his claim. [In] August 2014, the applicant wrote to the Minister and recanted his claims of offshore criminality. The Tribunal accepts that the police documents and the allegations made in them are fraudulent and the Tribunal accepts that there is no such case against him. The documents served to embellish his claims in relation to his relationship with a girl and the fact that he willingly provided them to the department, in the Tribunal’s view, significantly undermined his credibility.
235. As mentioned, his evidence about how he met the girl and how the relationship developed and how they would meet was hopelessly inconsistent.
236. When asked by the Tribunal when he met [Ms B], he replied that he met her in 2008, that he used to live close to her and met with her all the time. When asked what “all the time” meant, he replied that it was not every day and that they usually met at coffee shops. He said they would also talk on the phone after school. When asked whether anyone in the village knew of his friendship with [Ms B], the applicant replied that he and [Ms B] met secretly from 2008 to 2011. When asked how he could meet in secret but also meet at a coffee shop, he replied that they talked over the phone most of the time but also met in a coffee shop but not all the time.
237. The Tribunal discussed with the applicant what he had said to the interviewer during the SHEV interview. He had, at first, stated to the interviewer that he had met [Ms B] often and sometimes every day, including places such as coffee shops and outside in the village. The interviewer also asked whether the relationship was publicly known in the village. At that moment, the applicant changed his evidence to say that most of the time they would talk on the phone, did not talk much in public and that no villagers had seen them together publicly. Like the Tribunal, the interviewer suggested that coffee shops and the village were public places, however, the applicant replied that the coffee shop had a separate compartment where they could meet and they did not talk much in public but would go places like a side alley.
238. The inconsistencies in the applicant’s evidence relating to the relationship with [Ms B] were of grave concern to the Tribunal. Furthermore, his willingness to change his evidence in response to both the delegate’s and the Tribunal’s questioning, like his manufactured evidence in relation to criminal charges, severely compromises his credibility and the genuineness of his claims as to a relationship with [Ms B].
239. There were further inconsistencies in relation to when his relationship ended and when [Ms B]’s family became aware of the relationship and to the relativity in time at which he was threatened and/or attacked. There were inconsistencies as to the reason why he and/or his family were attacked. And towards the end of the first part of the hearing, there was confusion as to when [Ms B] passed away.
240. During the hearing, the applicant maintained that [Ms B]’s family did not find out about their relationship until May or June in 2011. The Tribunal discussed with the applicant his evidence to the delegate that in February 2010, [Ms B]’s cousins and members of the AL party beat him up and threatened to kill him if he continued his contact with [Ms B]. The applicant replied with unconvincing evidence that in February 2010, the family “knew a little bit and were suspicious and wanted to warn him off” and that is why they beat him up then.
241. The applicant maintained that the relationship with [Ms B] ceased in April 2011 but that they still spoke to each other on the telephone.
242. The applicant claimed that his family members were attacked [in] June 2011 and that their home was attacked [in] July 2011. When asked why there were such attacks in June and July given that he had broken up with [Ms B] in April, the applicant replied that [Ms B]’s family knew they were still talking on the phone. The Tribunal discussed with the applicant his evidence to the Tribunal that the family weren’t aware of the relationship until May or June in 2011. The applicant requested an adjournment at this time.
243. After the resumption of the hearing, the Tribunal reminded the applicant that he had told the delegate that the attacks in June and July of 2011 were motivated by [Ms B]’s death and her family’s belief that the applicant was responsible. It noted that he had previously stated to the Tribunal that the said attacks took place because her family knew they were still talking on the phone.
244. When asked again as to the date of [Ms B]’s death, the applicant replied May or June 2011. The Tribunal noted that his claim during his entry interview was that [Ms B] died in September/October 2011 and in the first part of the hearing was 2012 or 2013. The Tribunal further noted that her death in May or June coincided with when the applicant claimed her family found out about their relationship.
245. In response to a question as to whether he was actually attacked by [Ms B]’s family, he replied that he was threatened by them in January 2011 and that that is why he only then rang [Ms B] on the phone. This evidence was at odds with his written statement that he had been attacked 10 to 12 times in 2011. It was also, of course, completely at odds with his evidence that he maintained that [Ms B]’s family did not find out about the relationship until May or June of 2011.
246. There was also some internal inconsistency in his evidence and his claims as to where he physically was at the time of learning of [Ms B]’s death. He advised the Tribunal that he was at his [workplace 1] in Jhikargacha, yet he told the Tribunal that he was at his uncle’s place. When advised of this inconsistency, he told the Tribunal that he was at his [workplace 1] at the time of the attack and that he then went to his uncle’s place.
247. Accordingly, the Tribunal does not accept that the applicant had any relationship with anyone called [Ms B]. It does not accept that the applicant was threatened or attacked or that his family were threatened or attacked or extorted or harassed by a girl’s family or by anyone else at the direction of a girl’s family, including after the time at which he left Bangladesh. Equally, the Tribunal is not satisfied that the applicant suffered harm at the hands of the Awami League who he claimed were affiliated with [Ms B]’s family. The Tribunal does not accept any claims made by the applicant in relation to any relationship with a girl named [Ms B].
248. For these reasons, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Awami League or anyone else because of any alleged relationship with anyone named [Ms B], now or in the reasonably foreseeable future.
Conversion to Christianity
249. The Tribunal has the gravest concerns about the applicant’s credibility and the genuineness of his claims.
250. That said, the Tribunal was nevertheless impressed by the balance in the evidence presented by the applicant’s witness, Reverend [F].
251. When asked to comment upon her view of the applicant’s commitment to Christianity, she fairly replied that that was a hard question to answer. The witness spoke to the period of time that she has known the applicant, and of his attendance at Christian Fellowship. She spoke of his willingness to attend Fellowship and of him being a gentle person. She stated her belief that the applicant wants to understand the scriptures.
252. When asked why she believed that the applicant wanted to change from Islam to Christianity, she replied that the applicant wanted hope and believed that a new faith gave him that hope.
253. She also confirmed that he had been baptised. She also believed that the applicant would understand concepts such as Christmas, Easter, the Holy Trinity and baptism.
254. When asked whether the applicant might be engaged in Christianity in order to enhance his protection claims, that is to improve his prospects of not returning to Bangladesh, the witness replied that she is confident that his intentions are genuine.
255. The Tribunal discussed with the applicant that he had not made any claims as to Christianity at the time of making his SHEV application. The Tribunal noted that at the time of the SHEV interview, the applicant had only been to church on three occasions. At the time of the SHEV interview, the applicant claimed that he intended to be baptised as a Catholic within a week of the interview.
256. The Tribunal then discussed with the applicant that, in fact, he had not become baptised until more than a year later and had been baptised as an Anglican. When asked how that came about, the applicant replied that he had been placed in detention shortly after the SHEV interview and that he had decided to become an Anglican after learning more about religion.
257. When asked why he considered becoming a Christian, the applicant responded that he started liking Christianity, fell in love with it and stated that it made him feel good.
258. When asked whether he went to church, the applicant replied that he went every week and that he was often taken out of detention to go to services.
259. When asked what he understood of baptism, the applicant replied that to be a Christian, he must be baptised.
260. When asked of his understanding of Christmas, he replied that it is a celebration with family and children.
261. When asked of his understanding of Easter, he replied that God died on Good Friday and came back on the Sunday.
262. When asked what he actually feared, he replied that he feared people knowing about his conversion from Islam. He stated that no one would help him. He stated that he will be in trouble and that small groups and religious leaders won’t tolerate his conversion and will seek to harm him.
263. When asked about his family’s reaction to his Christian activities, he replied that he has no fear of his family as his family have cut him off. He confirmed that his family have made no threats to him.
264. The Tribunal considered media reports provided by the applicant to it and also Country Information from the DFAT Report. The DFAT Report noted separate incidents in 2016 of Islamist militants having murdered Christian converts which was consistent with the media reports submitted by the applicant which were of reports by Christian clerics of particular incidents of violence.
265. However, the Tribunal noted that the DFAT Report advised that there are no laws prohibiting religious conversion in Bangladesh. DFAT assesses that individuals converting from Islam to another religion (generally Christianity) are more likely to face societal pressure. It reported on rumours that Christian churches seeking to convert Muslims has occasionally led to localised violence against Christian individuals and institutions (refer incidents in preceding paragraph).
266. Further, DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections.
267. The Tribunal accepts the Country Information in the DFAT Report and in terms of its application to the applicant, notes in particular that the applicant’s family have cut him off but have made no threats to him.
268. The Tribunal also notes Country Information cited above that in response to the Islamist militant groups’ attacks during 2013 to 2016, authorities despatched police to protect churches and clergy. This would suggest that State protection is available to the applicant.
269. However, notwithstanding the Country Information, the broader issue for the Tribunal is whether the Tribunal accepts that the applicant’s conversion to Christianity is genuine.
270. The Tribunal accepts the evidence of the applicant’s witness that he has attended Fellowship, that he has become baptised and that he attends church. The Tribunal accepts, by virtue of his attendance at Fellowship and learnings therefrom, that he understands concepts of baptism, Christmas, Easter and the Holy Trinity.
271. The Tribunal found the applicant’s explanation for wanting to become a Christian quite vague in that he liked it and fell in love with it. The Tribunal is satisfied that the applicant’s understanding of certain concepts of religion has been learned by attendance at fellowship. Together with the Tribunal’s gravest concerns about the applicant’s credibility and the genuineness of his other claims, the Tribunal does not accept that the applicant’s interest in or conversion to Christianity is genuine. Given his regular mention of his concerns about conversion to Christianity in many other aspects of his evidence and answers to questions, including in his closing remarks, the Tribunal is quite satisfied that the applicant has entered into Christian observances and practices in order to strengthen his claim to be a refugee.

272. The Tribunal does not go so far as to say it is the sole reason so that it must be disregarded as conduct under s.5J(6) as the Tribunal is satisfied that there may be other reasons for his engagement with Christianity, including making friends and occupying his time.
273. Furthermore, the Tribunal is not satisfied that the applicant will practice his Christian faith should he return to Bangladesh now or at any time in the future or tell anyone, including his family, about his Christian practices.
274. The Tribunal did note the applicant’s remarks in conclusion that he is concerned that other people have seen documents confirming his baptism and that pictures have been taken of him coming out of a church. The Tribunal took those remarks to have been made for the purposes of supporting his claims to Christian conversion.
275. The Tribunal accepts that other people in the detention centre with him may be aware that he has attended Fellowship classes in the detention centre, underwent a Christian Baptism ceremony and attended church services regularly. The Tribunal accepts that this information may have been sent to the applicant’s family or others in Bangladesh. However, the Tribunal does not consider that this gives rise to a real risk or real chance of any harm to the applicant in Bangladesh given that he has not genuinely converted his religion to Christianity. The Tribunal accepts that people in Bangladesh may ask him about his religious activities in Australia, however, the Tribunal does not accept that their interest would become adverse in view of the fact that the Tribunal does not accept that the applicant will practice Christianity or profess any interest in Christianity if he returns to Bangladesh.
276. The Tribunal is not satisfied that there is a real risk the applicant would suffer serious harm in Bangladesh because of his involvement in Christian activity whilst in detention in Australia.
Concerns about Stepmother
277. The Tribunal noted the applicant’s claims and discussed with him his concerns about the potential for his stepmother to poison him in order to have either a parcel of land signed over to him or to prevent him inheriting anything from his father.
278. The Tribunal noted that the applicant had continued to live in the same village as his father and stepmother until he was [age]. Notwithstanding that the applicant believed he was not at risk until he was [age], the Tribunal notes that the applicant suffered no harm at the hands of his stepmother for the six years from the age of [age] until his departure date and certainly suffered no harm during the period until he turned [age].
279. The Tribunal does not consider that there is a real risk that the applicant would suffer serious harm at the hands of his stepmother because of any entitlement to inherit from his father or in relation to land he has already inherited now or in the reasonably foreseeable future.
Failed Asylum Seeker
280. The Tribunal discussed Country Information with the applicant in relation to his status as a failed asylum seeker.
281. The Tribunal accepts Country Information contained in the DFAT Report as discussed with the applicant that DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Furthermore, the applicant does not fit the profile of a person who is a high profile individual who has engaged in political activities outside Bangladesh.
282. The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Bangladeshi authorities because of his attempts to seek asylum in Australia, whether or not the Bangladeshi authorities are aware that he sought protection in Australia, now or in the reasonably foreseeable future.
Illegal Departure
283. The Tribunal discussed with the applicant the consequences of his illegal departure from Bangladesh.
284. The applicant’s former representative submitted that Bangladeshi law provides for penalties of one year’s imprisonment or a fine, or both.
285. The Tribunal accepts Country Information from DFAT that it is not aware of any instances in which the authorities have enforced such penalties.
286. The Tribunal accepts the Country Information contained in the DFAT Report that suggests that holders of fraudulent passports are being detained or questioned upon return. It also accepts Country Information that advises that DFAT is not aware of any cases in which authorities have enforced such penalties and the Tribunal has no information that contradicts that information. The Tribunal is not satisfied that there is a real chance that the applicant will face any penalties as a result of his illegal departure.
287. The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Bangladeshi authorities on account of his illegal departure from Bangladesh.
Data breach
288. The Tribunal understands this claim to relate to the reported disclosure of information relating to applicants for protection by the Department in February 2014, when a routine report released on the Department's website unintentionally enabled access to some personal information about people who were in immigration detention in Australia on 31 January 2014 (the data breach). This information was accessible online for only a short period of time before it was removed from the website.[15]
[15] As discussed with the applicant, the information that was inadvertently disclosed on the Department’s website was his basic bio-data. There is no evidence before the Tribunal to suggest that any information in relation his claims for protection was published or accessed by anyone. The Tribunal does not accept that the Bangladeshi government has any information about the applicant’s claim for protection or the basis of his claims, or that he has made protection claims in Australia.
290. Even if the Bangladeshi government has knowledge of the applicant’s details from the website disclosure, and also suspects the applicant has applied for protection in Australia, there is no evidence or indication before the Tribunal that this would give rise to any adverse interest in the applicant by the Bangladeshi authorities.
291. The Tribunal is therefore not satisfied there is a real chance of any serious or significant harm to the applicant arising out of the temporary availability of the applicant’s information on the Department’s website in February 2014.
292. In any event, the applicant, when asked, was only concerned that the data breach may have disclosed his Christian conversion. The Tribunal discussed with him that the data breach occurred in 2014, but that he had not claimed to have become a Christian until 2016.
Cumulative findings:
293. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of any imputed political opinion, his support of the BNP, his Christian conversion, his Christian activities in Australia, threats from the AL or its members, or family members in relation to any relationship with anyone called [Ms B], threats from his stepmother or his attempts to seek asylum in Australia, his departure from Bangladesh, or by reason of the data breach or any other reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Bangladesh. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
294. The Tribunal has considered the applicant’s claims under complementary protection.
295. 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). In so doing the Tribunal considered whether there are 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 it is defined in s.36(2A) and s.5(1).
296. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, 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 the Refugee Convention definition.
297. The Tribunal is not satisfied that there is a real chance the applicant would be subjected to significant harm in Bangladesh because of his involvement in Christian activity whilst in detention in Australia.
298. The Tribunal has already found that it is not satisfied that the applicant will be detained or persecuted on the basis of his illegal departure but acknowledges that he may face a period of imprisonment or a fine (though the Tribunal accepts that DFAT is not aware of any cases where such penalties have been imposed). However, even if the laws were enforced, they would be done so pursuant to a law of general application and that law would not be applied to him in a discriminatory way.
299. Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real risk of significant harm in Bangladesh for reasons of any imputed political opinion, his support of the BNP, his Christian conversion, his Christian activities in Australia, threats from the AL or its members, or family members in relation to any relationship with anyone called [Ms B], threats from his stepmother or his attempts to seek asylum in Australia, his departure from Bangladesh, or by reason of the data breach.
300. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
301. Accordingly, the Tribunal is not satisfied that there are 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 defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
302. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
303. Considering the applicant’s individual circumstances both individually and cumulatively, and the Country Information, 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 that there is a real risk that he will suffer significant harm.
Overall conclusion:
304. 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).
305. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
306. 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
307. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Michael Hawkins
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 6561

14 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction