1835072 (Refugee)

1835072 (Refugee) [2023] AATA 1606 (17 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Angus James Francis
CASE NUMBERS:  1835072 and 2111309
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Wayne Pennell
DATE:17 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 17 March 2023 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – Hinduism – particular social group – non-Muslim men who have engaged in an interfaith, pre-marital relationship with a Muslim woman – physical abuse and threats from her family – credibility assessment – omissions or the absence of information in an entry interview – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’). The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there was a real risk he would suffer significant harm. Nor was the delegate satisfied that the applicant was a refugee as defined by the Act[1] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[2]
[1]Migration Act 1958 (Cth), s 5H.
[2]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant was born in Bangladesh, and he is a Bangladeshi citizenship of the Hindu religion. His mother still lives in Bangladesh, however his father passed away in 2015. From what he can recall, he finished his education when he was aged about [age range]. He also recalls working for about two years in a [shop] in Narail in Bangladesh for about two years before he went to [Country 1] in 2007.
The applicant claimed that when he was aged about [age] to [age], he was forced to leave Bangladesh because he was subjected to physical abuse and threats from a Muslim family. This was because he had a relationship with a Muslim woman who was a member of that family. This relationship lasted for about three months, commencing sometime around November 2006 and ending about late January 2007. At the time of his relationship with the Muslim woman, he was living with his sister in Jashore.
The applicant claimed that late one afternoon, he was kidnapped off the street and taken to what he described as a remote location outside Jashore. He was bound, beaten and received death threats by the family of the Muslim woman. He did not seek help from the Bangladesh police because he was fearful the police would not have been able to protect him. Later in these reasons, this incident is outlined in greater detail.
After the incident outside Jashore, the applicant made the decision to leave Bangladesh and move to [Country 1] but could not do this immediately as he did not have a passport. He considered that he could not relocate permanently to another part of Bangladesh to avoid harm because the Muslim woman’s family would have easily found him. Notwithstanding that, he travelled to Dhaka where he stayed with his brother until his passport was arranged. Dhaka is about 200 kilometres from Jashore, or about five hours by vehicle.
After relocating to [Country 1], he found employment. For the first two years he was in [Country 1], he worked legally, but then his employer took his passport off him. For the remainder of his time in [Country 1] he worked illegally. He said that he was arrested several times in [Country 1] as an illegal immigrant because he could not show his passport. There were several instances when he bribed the police and was released. He said that in the five years he spent in [Country 1], there was never any occasion that he returned to Bangladesh, however he remained in telephone contact with his family during that time.
He remained in [Country 1] until late 2012 when he travelled to [Country 2] in what he described as a speed boat at night. He stayed in [Country 2] for about 12 to 13 days, during which time he was moved around to different places. When he left [Country 2] he travelled to Australia by boat. The trip took about eight to nine days. The boat he was on was intercepted by the Australian Navy and he was taken to Darwin where he was housed in an immigration detention centre.[3]
[3]On 9 January 2013.
Because he entered Australia by sea in an area of water at Ashmore Island, he is recorded within the Department’s records as an unauthorised maritime arrival.[4] The Department’s records also show that he was later issued with a bridging visa and released into the community.[5]
[4]Pursuant to Migration Act 1958 (Cth), s 5AA.
[5]Bridging visa granted on 21 August 2013.
On 11 January 2016, the Department invited the applicant to apply for either a temporary protection visa or a safe haven enterprise visa (‘SHEV’). Subsequently, the applicant lodged with the Department his SHEV application.[6] The Department later acknowledged the SHEV application was a valid application[7] and the applicant was invited to participate in an interview with the Department to discuss the nature of his application and the claims he made.[8]
[6]On 14 April 2016.
[7]The Department advised the applicant by letter dated 27 May 2016.
[8]Invitation sent on 20 October 2016 and the interview took place on 8 November 2016.
Following the applicant’s interview with the Department, his SHEV application was assessed by the delegate. After carefully considering all of the material relevant to his application, the delegate was not satisfied there were substantial grounds for believing that there was a real risk he would suffer significant harm if he returned to Bangladesh and his application was refused.[9]
[9]Delegate’s decision of 16 November 2016.
The Department determined that because he was considered as a ‘fast track applicant’ under the Act, the delegate’s refusal decision was referred to the Immigration Assessment Authority (‘IAA’) for review.[10] That IAA review was subsequently undertaken, resulting in the delegate’s decision being affirmed.[11]
[10]Pursuant to the Migration Act 1958 (Cth), Part 7AA.
[11]On 14 March 2017.
Subsequently, the applicant applied to the Court on the basis that he had not been properly notified of the delegate's decision.[12] While that application was in the process of being determined by the Court, the Full Court of the Federal Court of Australia (‘the Full Court’) handed down its judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (‘the DBB16 case’) and determined that the appointment of the proclaimed port in the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid.[13]
[12]Migration Act 1958 (Cth), s 66.
[13]On 6 August 2018.
That Full Court’s decision of DBB16 case meant that any person who entered an area of waters within the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013 and did not subsequently enter Australia at an excised offshore place, did not fall within the definition of an unauthorised maritime arrival. The effect of the Full Court’s judgment in the DBB16 case was that the applicant is not an unauthorised maritime arrival, and therefore is not a fast track applicant, and the delegate’s decision to refuse his SHEV application was not a fast track decision.[14] Instead, it was a reviewable decision and able to be reviewed by the Tribunal.[15]
[14]Migration Act 1958 (Cth), s 5(1).
[15]Migration Act 1958 (Cth), s 411.
At a later time, the Court made determination in respect to the applicant’s application and found that the applicant was not an unauthorised maritime arrival.[16] In applying the Full Court’s judgment in the DBB16 case, the Court said that the applicant was not a fast track applicant;[17] the delegate’s decision was not a fast track decision[18] and the delegate’s decision should not have been referred to the IAA. The Court also found that the applicant was incorrectly notified of the delegate’s decision.[19]
[16]Migration Act 1958 (Cth), s 5AA.
[17]Migration Act 1958 (Cth), s 5(1).
[18]Migration Act 1958 (Cth), s 473BB.
[19]Migration Act 1958 (Cth), s 66.
The applicant subsequently applied to the Tribunal for a review of the delegate’s to refuse his SHEV application.[20] What followed was the Department inviting him to apply to make a further application for a SHEV or a temporary protection visa.[21] About two weeks later, the applicant applied for a protection visa.[22] In respect to his protection visa application, the applicant relied upon the contents of his statutory declaration lodged with his SHEV application.[23]
[20]On 27 November 2018.
[21]On 8 October 2020.
[22]On 21 October 2020.
[23]Statutory Declaration dated 31 March 2016.
The Department later invited the applicant to participate in another interview, this time to discuss the nature of his protection visa application and the claims he made.[24] Following that interview, an assessment was undertaken of his protection visa application. After carefully considering the applicant’s application, the delegate was not satisfied there were substantial grounds for believing that there was a real risk he would suffer significant harm if he returned to Bangladesh and his application was refused.[25] The applicant then applied to the Tribunal for a review of that decision.[26]
[24]Invitation sent on 16 April 2021 and the interview took place on 6 May 2021.
[25]Delegate’s decision of 20 August 2021.
[26]Lodged with the Tribunal on 27 August 2021.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[27] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[27]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[28]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.[29] 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.[30]
[28]Migration Act1958 (Cth), s 36(2)(a).
[29]Migration Act1958 (Cth), s 5H(1)(a).
[30]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[31] 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 the Act, which are extracted in the attachment to this decision.[32]
[31]Migration Act 1958 (Cth), s 5J(1).
[32]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[33] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[34] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[35]
[33]Migration Act 1958 (Cth), s 36(2)(a).
[34]Migration Act 1958 (Cth), s 36(2)(aa).
[35]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[36]
[36]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[37]
[37]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Bangladesh. Since his arrival in Australia, he has generally been consistent regarding his identity and place or origin. In support of his identity, he provided a copy of his birth certificate attesting to his identity. The Tribunal is satisfied that there is no reason to consider that the documents provided is a bogus document.[38]
[38]Migration Act 1958 (Cth), s 5(1).
Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[39] The Tribunal is satisfied 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.[40]
[39]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
[40]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[41] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[41]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[42]
[42]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the applicant claims he faces 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 the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[43] Nor is the Tribunal required to accept uncritically any, and all, of the allegations made by the applicant.[44]
[43]Migration Act 1958 (Cth), s 5AAA.
[44]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S CLAIMS AND THE EVIDENCE
The applicant claims that he fears persecution in Bangladesh because of his Hindu religion and membership of a particular social group, and he is at real risk of suffering serious, or significant harm if he returned to Bangladesh. He explained that the social group relates to non-Muslim men who have engaged in an interfaith, pre-marital relationship with a Muslim woman.
The applicant claims that his well-founded fear of persecution involves the infliction of serious harm and systematic and discriminatory conduct, including arbitrary deprivation of his life, significant physical harassment and significant physical ill-treatment.
In addition, his claim for protection is based on the fact that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm, including cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal notes that the applicant provided a statutory declaration as an explanation of his claims.[45] In regard to why he cannot return to Bangladesh, he claimed that because he was involved in a relationship with a Muslim woman in 2007, he was subjected to physical abuse and threats from her family, and he was forced to leave Bangladesh. He claimed that he was unable to seek help from the police.
[45]Dated 31 March 2016.
In explaining the type and amount of harm he had experienced in Bangladesh, he claimed that at the time he commenced the relationship with a Muslim woman, he did not realise that she was Muslim. It was later that he made that discovery, and he ended their relationship. The woman then told her family, including her father, brothers and uncles about their relationship. Those family members then came looking for him. When they found him, they took him to remote bushland where they repeatedly assaulted him. He also claimed they threatened to kill him. He managed to escape after being helped by an unknown person (‘the stranger’) who was nearby. He did not make a complaint to the police about what had happened because he was worried that any complaint he made would cause further problems for himself and his family. He also asked the stranger that helped him not to report what happened to the police.

The applicant claimed that in Bangladesh, he was part of the Hindu minority within a predominant Muslim community. Therefore, Hindus are not welcomed within the Bangladesh society and people belonging to the Hindu minority are often forced out of Bangladesh and into India.
At the time he was kidnapped, taken to the remote area and assaulted, he was living with his sister in Jashore. After the unknown person helped him escape, he contacted his brother in Dhaka and arranged to live with him. After going to his brother’s place, he stayed for a few months until he was issued with a passport. He claimed that his brother received death threats.
He went on to claim that the family of the Muslim woman continued to threaten, taunt and physically assault his relatives who lived in Narail. They wanted to know where the applicant was, and they told his relatives that if he reported anything to the police they would kill the applicant and his relatives. He alleged that the Muslim woman’s family members continued to do this during the period before he left for [Country 1]. It was around that time that his brother suggested that he should leave Bangladesh, which he did, and he relocated to [Country 1].
He said that the threats and abuse by the Muslim family continued and was still occurring in early 2016 when he completed his statutory declaration. He alleged that because of the ongoing abuse from the Muslim family, his father suffered a stroke and passed away. Although the Tribunal is prepared to accept that his father has passed away, there was no probative evidence to support the particular claim as to the cause of his father’s death.
When explaining why he did not disclose this information and claims during the arrival interview he had when he first arrived in the immigration detention centre, he said that this was because he had been on a boat for such a long time, he was confused, scared and was not in a good state of mind. He claimed that he was unsure what to say because he was afraid that if he spoke about the details involving the harm caused to him by the family of his former girlfriend, then he would be sent back to Bangladesh.
The Tribunal is mindful of the Court’s determination in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, [56] in respect to omissions or the absence of information provided by applicants in an entry interview. When assessing the applicant’s explanation in this matter, it is accepted by the Tribunal that given the circumstances and uncertainty he would have experienced in travelling across the ocean in a refugee vessel, along with the conditions he would have been subjected it, it is plausible as to why he did not make those precise claims at a much earlier occasion such as the arrival interview.
In respect to him returning to Bangladesh, the applicant claimed that since he left Bangladesh, he had been told that the Muslim woman consumed poison. This enraged her family even further, and his fear is that if he returned, her family would find out that he has returned and try to kill him. His fear is that the woman’s family may even come after his family.
In respect to being able to seek help from anyone including the authorities, he said that although he still has a brother living in Bangladesh, he was in no position to help the applicant. In respect to the police, because Hindus in Bangladesh are still encouraged to leave the country and go to India, he does not consider the authorities would assist. The applicant also fears that even if he relocated to another part of Bangladesh for protection upon his return, because the woman’s family are still enraged about what happened to her, he fears that her family would be able to find him and kill him.
EVIDENCE AT THE HEARING
During the review hearing, the Tribunal had the opportunity to assess and gauge the responses provided by the applicant to the questions being posed to him by the Tribunal. The Tribunal noted that although English is not his first language and he was able to from time to time communicate directly with the Tribunal, he still required the services of an interpreter. The Tribunal observed that on occasions he appeared hesitant and vague in his responses to the Tribunal queries. Given those features just identified, the Tribunal accepts that any hesitancy was not an example of a lack of veracity, but rather more related to a language barrier issue. Overall, although there were some minor variances in his oral testimony to what he outlined in his statutory declaration, the Tribunal is mindful that his statutory declaration was completed in March 2016, a period of almost seven years ago.
The Tribunal is also mindful that when the applicant’s statutory declaration was made, that process was undertaken by what was referred to as the unrepresented asylum seeker project instigated by an immigration legal service. The statutory declaration was prepared with the assistance of a volunteer solicitor and an interpreter. The taking down of his version was through the use of an interpreter who relayed information of the claims from the applicant to the solicitor, who in turn typed those particulars in the English language. When the statutory declaration was completed, it was read back to the applicant in his native language. The Tribunal acknowledges and accepts the possibility that some variances in the evidence could be experienced in the undertaking of that process.
In his oral testimony, he outlined that he had been introduced to the Muslim woman, and this turned into an emotional relationship. They met up on several occasions. Initially, he was not sure of her religious identity because her Christian name is a common name in Bangladesh. It was on the third occasion they met that she identified her surname. When he heard her surname, he recognised that it identified her as a Muslim.
In describing the circumstances of the harm caused to him, he told the Tribunal that a group of up to five men grabbed him off the street in Jashore and were going to kill him. When asked how he knew that; he said that he was told by the group that he would be killed because of his relationship with the Muslim woman. He said that it scared him because by that time he had abandoned the relationship with her almost two weeks earlier, but apparently when she told her family about their relationship, she maintained that it was ongoing.
He described being on a road in Jashore on his way home. It was late in the afternoon and a group of men approached him. He was grabbed and knocked unconscious. When he regained consciousness he realised he had been taken out of the town and into a remote bush area. His hands and legs were bound up with rope. He did not know where he was, but although it was getting on towards dusk, he could make out some buildings off in the distance.
The applicant described that these men then beat him with wooden sticks, similar to a wooden baton used by the police. The beating took place over what he considered to be about an hour. These men then left, and in doing so told him that they would be coming back for him. About a half an hour after they left, the stranger arrived and saved him. He was told by the stranger that he (the stranger) knew the men who beat him. The stranger had seen the men take the applicant into the bush area, and knowing that they were really bad men, he waited until they left before approaching the applicant.
COUNTRY INFORMATION
When British India was divided into the states of India and Pakistan in 1947, largely along religious lines, the predominantly Muslim eastern portion of Bengal province became East Pakistan, which declared independence as Bangladesh in 1971. Although many Hindus left the region for India during Partition, fearing persecution, many others remained. Hindus in Bangladesh are a beleaguered minority, and increasingly, they are facing discrimination and even violence in everyday life.[46]
[46]The partition of India in 1947 came suddenly, creating chaos, bloodshed and mass migration, ABC News, Neel Banerjee, 21 February 2023, -of-india-and-pakistan-led-to-chaos-and-bloodshed/101980234#:~:next=A%20nation%20split,India%20and%20Muslim-majority%20Pakistan.
According to the 2021 US Department of State International Religious Freedom Report on Bangladesh, in 2021, the total estimated population of Bangladesh was 164.1million, of which 89 per cent of the population is Sunni Muslim and 10 per cent is Hindu. The remaining population is mostly Christian or Buddhist. Religious minorities are found throughout the country but especially in the Chittagong Hill Tracts among Indigenous People.[47]
[47]The DFAT Country Information Report, Bangladesh, 30 November 2022, page 16, paragraph 3.33.
People who identify as Hindus are of the minority in Bangladesh. Credible country information available to the Tribunal identifies that apart from facing discrimination within Bangladesh, they are also subjected to violence. On 15 October 2021, mob violence erupted in the town of Begumganj, Bangladesh, during Durga Puja, the holiest Bengali Hindu festival of the year. The unrest was sparked by online rumours that the Quran had been desecrated when it was allegedly placed at the feet of the Hindu goddess Durga. Reports suggested that Muslim hard-liners may have used social media to provoke the violence, which killed two Hindu worshippers. In the wake of the incident, attacks on Hindu sites swept across Bangladesh, with at least 17 temples being targeted, homes were ransacked, and several Hindus killed in other clashes.[48]
[48]Bangladesh’s Deadly Identity Crisis, Sumit Ganguly, 29 October 2021, >
Other credible country information resources such as the DFAT report provides that family law (concerning marriage, divorce, inheritance and adoption) contains specific provisions for Muslims, Hindus and Christians, but the same secular courts hear cases for all religious communities. There is a separate civil family law for mixed faith families or adherents of faiths other than Islam, Hinduism or Christianity.[49]
[49]The DFAT Country Information Report, Bangladesh, 30 November 2022, page 16, paragraph 3.34.
Within Bangladesh, there is significant social stigma against single women. Because most Bangladeshi women are married very young, there is significant social stigma against single women. Single by choice is virtually unheard of. Remarriage on the case of widowhood or divorce is often considered socially unacceptable.[50]
[50]The DFAT Country Information Report, Bangladesh, 22 August 2019, page 35.
Interreligious marriages, although slowly becoming more popular in urban areas, have been very rare in Bangladesh. The striking paucity of interreligious marriages in a country in which people of different religious orientations have always lived side by side is a surprising phenomenon. There are good reasons to assume that difficulties arising from the existing structure of personal status laws are a main factor explaining that situation. While some interreligious constellations can be accommodated within the existing system, in accordance with the rules of the concerned religious communities, others cannot. For instance, a Muslim woman cannot legally marry a non-Muslim man.[51]
[51]Report of the Special Rapporteur on Freedom of Religion or Belief on his mission to Bangladesh, 22 January 2016, paragraphs 77 – 78,
In respect to the applicant’s claims, when careful assessment is made of his claims and the available country information, the Tribunal accepts that as a non-Muslim man, he cannot legally marry a Muslim. When consideration is given the treatment of Hindus in Bangladesh, if he married the Muslim woman, they, as a couple, must declare officially that they do not believe in any institutionalised religion and denounce their belief in any religion in order for them to marry legally. The consequence of that for the applicant is that any member of an undivided family that professes the Hindu religion shall be deemed to affect his or her severance from such family.[52]
[52]Report of the Special Rapporteur on Freedom of Religion or Belief on his mission to Bangladesh, 22 January 2016, paragraph 78, >
The Tribunal accepts that the applicant was in a relationship with a Muslim woman. The Tribunal notes the DFAT country information outlines significant social stigma exists against single women and most Bangladeshi women are married very young and being single by choice is virtually unheard of. This is support for the hypothesis that the risk of harm, including physical harm, to a non-Muslim man and Muslim woman in an interfaith relationship, as in the case of the applicant, is increased if the couple are not married.
The Tribunal acknowledges that the applicant has raised a concern and expressed his fear that the police will not be able to protect him from the harm as already discussed. The Tribunal accepts that his fear is consistent with the views expressed in the various country information reports that religious minorities in Bangladesh are targeted and are the subject of mob violence, predominately from the Muslim population.
FINDINGS – Future risk of harm to the applicant
The Tribunal accepts and notes that at the time of the Tribunal’s review hearing, considerable time has passed since the delegate made the original assessment and decision. Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of his application as at the date of the review hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[53]
[53]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
In respect to the applicant’s oral testimony, the Tribunal acknowledges that English is not his primary language. As outlined earlier in these reasons, although he had the very basic grasp of the English language and could at times verbally interact with the Tribunal, he still required the assistance of an interpreter. The Tribunal has identified that his explanation and description provided within his oral testimony about the harm he experienced when taken to the remote bush area by the Muslim family members was in greater detail to that which was described in his statutory declaration. For the reasons already identified, the Tribunal accepts that when he provided information that was then translated into his statutory declaration, it appears that the intricacies of what transpired on that occasion did not form part of the drafted document.
When carefully assessing his evidence about the harm he experienced, the Tribunal accepts that his evidence was consistent with the available evidence. On the available evidence, the Tribunal accepts the claim made by the applicant that he was in a relationship with a Muslim woman. When carefully assessing his claims and weighing those claims against the available and credible country information, the Tribunal finds that because of his Hindu religion, he was part of a social particular social group and is at real risk of suffering serious or significant harm if returned to Bangladesh. The Tribunal also finds that the social group includes non-Muslim men who have engaged in an interfaith, pre-marital relationship with a Muslim woman.
The Tribunal also accepts the applicant’s claim that he experienced harm when he was knocked unconscious and was taken off the street in Jashore and taken to a remote location. In assessing the veracity of that claim, the Tribunal finds that in the absence of evidence to the contrary, he did experience harm.
The Tribunal also finds that because of the nature of his relationship with the Muslim woman, and the retaliation by her family to the relationship, there is a risk of him being subjected to serious harm, along with the systematic and discriminatory conduct, including arbitrary deprivation of his life, significant physical harassment, and significant physical ill-treatment. The Tribunal accepts the evidence of the applicant that subsequent to the conclusion of their relationship, the Muslim woman self-harmed, with this further agitating the risk of harm to him should he return to Bangladesh.
In conclusion, when carefully assessing the facts, circumstances, features and available evidence, and when weighing all of that against the available country information, the Tribunal finds 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, including cruel or inhuman treatment or punishment or degrading treatment or punishment.
For those reasons given above, the Tribunal finds that the applicant meets the definition of a refugee as per the criteria set out in the Act.[54]
[54]Migration Act 1958 (Cth), s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act1958 (Cth).
Wayne Pennell
Senior Member

Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2023] AATA 1606

17 March 2023

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