1836709 (Refugee)

[2024] AATA 3670

1836709 (Refugee) [2024] AATA 3670 (20 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBERS:  1836709

1904378

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Brendan Darcy

DATE:20 May 2024

PLACE OF DECISION:  Melbourne

DECISION:In relation to review application 1836709, the Tribunal affirms the decision not to grant the applicant a protection visa in the relation to the review application made on 14 December 2018.

In relation to review application ion 1904378, the Tribunal does not have jurisdiction in relation to this review application made on 26 February 2019.

Statement made on 20 May 2024 at 11:29am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival by sea – not irregular maritime arrival or fast-tracked applicant as defined – religion – Muslim converted to Christianity – insulted and attacked – political opinion – supporter and low-level assistant of political party – beaten and threatened, and brothers missing – accusations of serious crimes – no report to police or attempt to relocate internally – lived and worked in another country – activities and official position in state branch in Australia – inconsistent claims and evidence – religion notified as Islam and no claim on religious ground at arrival interview – unconvincing account of claimed conversion – no supporting evidence of church attendance and activities – limited knowledge of religion and politics – Christianity inconsistent or incompatible with membership of Islam-aligned political party – forensic examination of supporting documents inconclusive – country information – second application for review of same decision invalid but not withdrawn – no jurisdiction to review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411, 420, 422B, 438(1)(a)
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
MZYXS v MIAC [2013] FMCA 13
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZOIW v MIAC [2010] FMCA 568
SZRRV v MIAC [2012] FMCA 997
Wang v MIMA (2000) 105 FCR 548
WALT v MIMIA [2007] FCAFC 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of the People’s Republic of Bangladesh (Bangladesh), applied for the visa on 22 January 2016.

3. [In] October 2012, the applicant arrived in Australia as an irregular maritime arrival on the vessel code named [Codename] at Australia’s Ashmore and Cartier Islands, one of its Indian Ocean external territories. The applicant was allocated Boat ID: [Reference].

4. An entry interview was conducted between the applicant and officials from the Department of Immigration and Citizenship (now the Department of Home Affairs), on 2 November 2012. This interview was conducted with the assistance of an interpreter in the English and Bengali languages.

5. The applicant was granted a temporary Class UJ Subclass 449 Humanitarian visa on 20 January 2013 for a day and subsequently granted a series of Class WE Subclass 050 bridging visas.

6. The applicant subsequently applied for a Class XE Subclass 790 Safe Haven Enterprise visa (or SHEV) on 22 January 2016.

7. On 17 May 2017, the delegate refused to grant the visa on the basis that the available country information did not support the applicant’s claims about fears of persecution based on political opinion and religion. The delegates also wrote that the applicant did not hold an adverse profile of interest to the authorities prior to his departure and there is nothing to suggest that he has become a person of interest to them while abroad, should he return to Bangladesh as a failed asylum seeker.

8. As a ‘fast-tracked reviewable decision’, the matter was referred to the Immigration Assessment Authority (IAA).

9. On 10 January 2018, the IAA reviewer affirmed the decision not to grant the applicant a protection visa in separate decisions. The applicant subsequently appealed the decision to the Federal Circuit Court of Australia (FCCA).

10. Following the Full Federal Court (FCC) judgment in DBB16 v MIBP (2018) 260 FCR 447 (DBB16), the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a temporary protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411 of the Act.

11. On 28 November 2018, the FCC discontinued the appeal proceedings before the FCCA.

12. On 14 December 2018, the Tribunal received a review application for the applicant’s refused SHEV application. Attached to the application for review was a copy of the decision record. On the same day, the Tribunal acknowledged the receipt of the application for review indicating the matter was allocated the AAT number 1836709.

13. Separately the FCCA referred the matter to the Tribunal on 4 April 2019. The Tribunal wrote to the applicant’s representative.

14. An application for a review for the refusal decision dated 17 May 2017 was lodged with the Tribunal on 26 February 2019. Attached was a copy of the decision record.

15. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments as part of joint review of both applications: 1836709 and 1904378. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali (Bangla) and English languages.

16. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

18. 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.

19. 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).

20. 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–5LA, which are extracted in the attachment to this decision.

21. 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

22. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to review application 1836709.

    Background

24. The applicant was born on [Date] in Madaripur district in the Dhaka Division, the capital city of Bangladesh.

25. The applicant claims to be a citizen of Bangladesh. The applicant provided a copy of his birth certificate issued by the relevant authorities in Bangladesh, and a Nationality Certificate indicating the applicant was born Bangladeshi and Muslim.[1]

    [1] [Reference] Document ID 5996392

26. Between 2008 and late 2012, the applicant resided without a visa in [Country 1].

27. Via [Country 2], the applicant entered Australia as an irregular maritime arrival whereby he was intercepted at Australia’s Indian Ocean territory at the Ashmore and Cartier Islands [in] October 2012.

28. Without any valid visa or official permission, the applicant arrived in Australia’s territorial waters on a boat labelled by Australian authorities as [Codename]. Having been intercepted by Australian officials, the applicant was subsequently taken to Darwin and placed into immigration detention. The applicant was allocated the alphanumeric identity or ‘Boat ID [Refence]’.

    Entry interview

29. An entry interview was conducted between the applicant and officials from the Department of Immigration and Citizenship (now the Department of Home Affairs), on 2 November 2012. This interview was conducted with the assistance of an interpreter in the English and Bengali languages.

30. During this interview, the applicant claimed to be a citizen of Bangladesh and that he was born on [Date] in [Village], a village located within the Madaripur district.

31. According to the record of the interview, the applicant put forth claims for protection, which can be summarised as follows:

    2008 - Bangladesh - I supported the Bangladesh National Party, and I was bothered by the ruling Party, Awami League because of this. I supported them by going to other places and trying to get other people involved, and used to put posters on the walls for them. I was threatened, that's why I left the country, to save my life. The representatives of the Awami Party did beat me up twice, they warned me that if we get you again we will kill you, somehow I managed to flee. That happened in 2008.

    2012 - [Country 1] - In [Country 1] the salary was very low, they sometimes didn't pay me, and I couldn't send any money to my family. This is the only reason I left [Country 1].

32. The applicant indicated in the interview that his religion is Islam.

    Claims at the time of application

33. The applicant subsequently applied for a SHEV (Subclass 790) visa on 22 January 2016.

34. Attached to the application was a statutory declaration dated 13 September 2013. The claims raised in relation to this application can be summarised as follows:

    ·     The applicant was born a Muslim but converted to Christianity in approximately 2006. He had an interest in the Christian faith and on one Christmas Day he went to a Christian church in his hometown to see what Christmas celebrations involved. He was welcomed into the church and invited to attend their sessions every Sunday and given Christian books to read and with which to educate himself;

    ·     The applicant became captivated by Christian teachings and came to know from where Jesus came. He learned about mother Mary and became emotionally aroused. He came to appreciate the life of Jesus, in particular the way he sacrificed himself and delivered the messages of God;

    ·     The applicant did not tell his family as he felt they would have been disappointed with him. Some Muslims from his community suspected he had become a Christian as they had seen him go to church regularly. Although the applicant told them he had work commitments at the church they came to later know that he was going for prayer;

    ·     The Muslims in his community began an active campaign in torturing the applicant. They would attack him and he was beaten and insulted on many occasions, requiring medical attention. His brothers would purchase medical supplies as it was dangerous for him to attend hospital;

    ·     In 2008 he became politically active with the Bangladesh National Party (BNP) as three of his brothers were also involved. The applicant would assist with party activities and support his brothers. The BNP were working for the poor and trying to improve the human rights situation in Bangladesh. The applicant would post posters on walls and erect stages to hold meetings and would assist during election time;

    ·     When the applicant commenced supporting the BNP he began receiving problems from the Awami League (AL) supporters who wanted him to work for them as they saw that the applicant was effective in supporting the BNP and identified him as a valuable member. He refused their offer in 2008 and they sought to punish him. They would attack him and his younger brother returning from work and he was beaten a couple of times as he was considered to be a political opponent. He was warned that if caught again he would be killed. He fled after the 2008 election;

    ·     The applicant fears being killed in Bangladesh by the Muslim community and the Awami League;

    ·     The Muslim community are on an active campaign to target individuals who change their religion. He has faced harm in the past due to his conversion and will face further harm upon return. The Muslim community will punish him for his actions. He has continued to practise his faith in Australia and attends church and Bible studies;

    ·     He fears harm due to his political activities. The AL supporters are targeting him for supporting the BNP as he has been identified as a political opponent. By refusing to join the AL he is considered to be their opponent. His two brothers are missing and were leaders of the BNP’s student wing, Chatra League;[2]

    ·     The authorities will not protect him as they are authorised by the government to carry out violence against anyone who changes their religion. If he went to the police then his family would become aware he has changed his religion. He would then be isolated and ridiculed in the community by his family and friends. The police also abuse BNP supporters; and

    ·     The applicant cannot live elsewhere in Bangladesh as the targeting of Christians and those who change their religion from Islam to Christianity are severely dealt with.

    [2] Bangladesh Jatiotabadi Chatra Dal, Wikipedia, >

    According to the applicant’s Form 80 and Form 886C, at the time of application, the applicant was married (in [Year]) and had one [child] aged [Age] years, and one [child] aged [Age] years. He nominated Christianity as his religion, and his occupation as farmer.

35. According to the decision record, the applicant raised the following claims at the Department’s protection visa interview held on 13 December 2016:

    ·     He was involved with the BNP party in Bangladesh. When asked what the initials stood for he had problems telling me. He claimed that people used to refer to the party as BNP, possibly national party but he was not completely sure. He claimed he only knew BNP. His role with the party included putting up posters in the street and arranging the stage for any functions. During the campaign or rally he would let people know that the campaign was on. He would put up posters in the market place or the villagers homes.

    ·     He did not hold any title with the party or hold any position. He was not on the committee. He was involved with the BNP club and would follow other people’s instructions. He initially became involved with the party when he was in class 8 at the age of 13-14 until he left for [Country 1]. He was asked as to how he became involved with the party at such a young age. He replied that he would go to the club and get involved with other members. He was asked as to what he did for the BNP at the age of 13-14. He claimed that he would give support to the secretary of the club and would take care of some administrative tasks. To assist with elections he would put up posters which gave details of the rally, when and where it would be held. He assisted in the elections in 2008 with meetings and organising the stage, tent etc. Many other people were involved as well. His parents had never been involved, although his brothers had been.

    ·     The applicant was able to name the leader of the party, colours of the party flag but was unable to advise the party symbol. He was unable to advise how many seats the party currently held and claimed that there has been no election since 2008. He claimed the candidate in his area had been unsuccessful. When asked as to what the party stood for he claimed that the party wanted to help the poor, religious schools called madrassa. When asked as to how BNP’s policies were different from other parties, the applicant claimed that the leaders know the answer to this question and that his involvement was low level and he was not supposed to know. He claimed that in his area there was much support for the BNP. He was asked as to why he was then targeted by members of the Awami League. He claimed that the Awami League members could see what he was doing and wanted him to join them. He told them on several occasions that he wanted to stay with the BNP and a while later Awami League members attacked him on his way home. The attacks occurred immediately before the election and a few times after the election held in 2008. The applicant did not report the attacks to the police as there was no point in doing so.

    ·     The applicant’s two brothers worked with a powerful person and one day they both went missing. On occasions they would contact the family at home however there has been no contact from either brother for the last two and a half years. The matter of his brothers’ disappearances has never been reported to the police.

    ·     With regards to the applicant’s claim that he converted to Christianity he advised that he converted approximately one to two years prior to his marriage in [Year]. He claimed that he became involved in Christianity at Christmas one year and had asked to be shown what Christians do and was given some books to read about Christianity. On the basis of this knowledge, he then decided to convert. It was put to the applicant that when he initially arrived in Australia he claimed his religion to be Islam and was asked as to why he would have advised that if he had converted to Christianity prior to [Year]. He claimed that he believed he had advised that he was Christian but his family were Muslim.

    ·     The applicant was asked as to what problems he experienced when he converted, to which he claimed that when he would travel to church he would be asked by some people as to where he was going. He advised he was going to work but they found out otherwise and beat him. He did not report the matter to the police as his family did not know what he was doing and he also did not want them to be harmed on account of himself. The beating occurred around [Years]. The applicant was asked if he attended church in Australia. He claimed that he attends [a Country 3] church in [Suburb] which is next to the plaza and he has been attending since his arrival in 2014. He was unable to advise the name of the church and claimed that many [Country 3] people attend.

    ·     If the applicant returns to Bangladesh he will not be able to practice his religion and may be beaten again. He will face problems on account of both his religion and imputed political opinion and fears members of the Awami League and Muslims. He has never reported any of these issues to the police as they will not act. He cannot live in another part of Bangladesh as he has never lived elsewhere in Bangladesh. There are no other reasons as to why he fears returning to Bangladesh. He has not committed any crimes and is not wanted for any reason by the authorities in Bangladesh.

    Supportive documentary evidence submitted with the Department

1. On 12 December 2016, the applicant’s representative submitted the following documents to the Department via email:

   ·     A letter from the [District] Committee of Bangladesh Nationalist Party (BNP) dated 28 July 2016;

   ·     A First Information Report (FIR) from a police station in Madaripur dated [March] 2010;

   ·     A Charge Sheet dated [August] 2010;

   ·     A Warrant for Arrest issued by a magistrate dated [August] 2010; and

   ·     An Order to Compel the Appearance of a Person Accused dated [March] 2010.

2. All the submitted documents were written in English. It is noted that the FIR accuses the applicant of committing death, assault with intention to kill with deadly weapons and sedition, and that the applicant shot a man with a pistol.

3. The representative wrote in a subsequent and related email:

   Our client instructs that he contacted his mother and requested she obtain a letter from the BNP Party in support of his matter. Upon contacting the party, his mother was informed that false accusations had been made against the applicant and as a result he had been charged and summons. The Applicant believes the Awami League have made false allegations against him and other BNP Members in order to try and intimidate them. Our client only became aware of this information in recent times and therefore was unable to disclose same within his statement of claims. He instructs that his mother previously received papers at her home however given she is illiterate, she was unaware of the contents of the documents. Our client believes they may have been court documents. Our client will provide further details at his forthcoming interview with the Department.

4. These documents, plus the applicant’s birth certificate, were referred to the Department’s forensic document examination unit and were subject to a forensic examiner’s report (see discussion below).

   Evidence provided during merits review

5. A delegate acting on behalf of the Minister refused to grant the applicant a SHEV on 17 May 2017.

6. The applicant applied for a review of the delegate’s decision on 14 December 2018, with this Tribunal.

7. As noted above, as a ‘fast-tracked reviewable decision’, the matter was referred to the IAA, and on 23 November 2017, the IAA reviewer affirmed the decision not to grant the applicant a protection visa. The applicant subsequently appealed the decision to the FCCA.

8. Following the Full Federal Court judgment in DBB16, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a temporary protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411 of the Act.

9. On 27 November 2018, the Federal Court of Australia discontinued the appeal proceedings before the FCCA. The matter was then referred to the Tribunal on 4 April 2019 and allocated the AAT number 1836709.

10. On 24 January 2024, the Tribunal received a pre-hearing submission prepared by the applicant’s representative. It included a 23-page legal submission and the following documents:

    ·     An undated letter from the BNP’s branch in the State of Victoria indicating the applicant has been a member of that branch since 2014 and in 2018 he became the [official position 1]. It is signed by the [official position 2] of the BNP Australia, [Mr A];

    ·     Photographs of the applicant attending BNP events in Australia; and

    ·     A two-page statutory declaration by the applicant. Dated 24 January 2024, the declaration is a summary of his fears in returning to his home country due to religious and political persecution.

11. As mentioned above, the applicant appeared at a scheduled hearing for review applications 1836709 and 1904378.

    Post-hearing submissions, non-disclosure certificate and adverse information

12. As discussed during the hearing, the Tribunal undertook to write to the applicant under the Act’s adverse information provision to seek comment on different pieces of evidence. On 7 February 2024, the Tribunal put particulars of different pieces of information for comment, and requested to receive those comments by 21 February 2024.

13. The letter states that on the Departmental file ([Reference]) is a copy of a document examination case report subjected to a validly issued non-disclosure certificate. The notice is dated 24 June 2019 and was issued in accordance with s 438(1)(a). It further states it would be contrary to the public interest to disclose ‘a Document Examination Unit Report pertaining to the applicant (Boat ID [Reference])’. A copy of the notice was provided for comment on its validity.

14. The examination report dated 10 March 2017 indicates that in December 2016 a departmental official requested the documents received by the Department in January 2017 to be forensically examined. A redacted version of the document was provided.

15. Specifically, it mentions the information contained on pages 2 to 5 contain the ‘Examination Method’ and assessment/observations made by a departmental Forensic Document Examiner that disclose specific processes and information considered by the examiner to assess the authenticity of the documents.

16. The report assessed all the documents as being inconclusive, that is, it could not be verified whether or not these documents were obtained legitimately. Specifically about the birth certificate the examination report states it is not consistent with the quality of manufacture expected in an identity document and that it is unreliable.

17. The Tribunal also raised the DFAT report from November 2022 indicating document verifications are difficult, and the overall information invited the Tribunal to consider submitted documents were bogus or fraudulently obtained.

18. Other information for which the Tribunal sought verification included, by way of summary:

    ·     Publicly available information from googlemaps did not support the applicant’s claims he travelled between Madaripur and Chittagong by bus for religious reasons on a regular basis as it would be too time-consuming, impractical and costly;

    ·     The applicant’s previous lack of insight into Bangladeshi politics as outlined in the decision record and the lack of probative value of his later oral evidence;

    ·     After reviewing the 2012 arrival interview, the recording did not support the applicant’s claim to have mentioned his fears of returning to Bangladesh as a convert from Islam to Christianity;

    ·     The perceived inconsistency as to whether being a Christian convert is incompatible or mutually exclusive with being an active member of the BNP;

    ·     The perceived inconsistencies about the timing of being involved with the BNP and whether the applicant was an office bearer of the BNP or not; and

    ·     With regards to claims the applicant travelled to [Country 1] through an international airport without a travel document.

19. After requests for extensions were granted, on 6 March 2024, the Tribunal received a legal submission from the applicant’s representative. The submission addresses a number of issues raised in the adverse information letter. It is noted the validity of the non-disclosure note was not raised.

20. On 19 March 2024, the Tribunal received a statutory declaration signed by [Mr B]. Dated 13 March 2024, the declaration was submitted as part of the applicant’s response to the s 424A letter. [Mr B] claimed to have known the applicant for more than 20 years; that he migrated to Australia 18 years ago; and he regularly sees the applicant every 4 or 5 months. [Mr B] claimed his brother, [Mr C], was a [public figure] representing the BNP and that his brother died in jail and that his family believes he was killed for being a member of the student wing of the BNP. [Mr B] claimed his brother had been close friends of the applicant’s brothers, [Mr D and Mr E], who assisted his brother’s political involvement. The applicant, it is further attested by [Mr B] as a former office bearer of the BNP in Victoria, remained politically active in Victoria and continues to attend meetings of the BNP. He further states he fears for the applicant’s life given the applicant’s political views, activism and connection with his brothers.

21. It is noted the validity of the non-disclosure notice was not raised. The Tribunal is satisfied that the non-disclosure certificate was issued validity and it carried out its obligations under the Act’s adverse information provision in this application for review and in accordance with ss 420 and 422B.

    Country information: Bangladesh

22. Below is an extract from the DFAT country information report on Bangladesh (30 November 2022) about the recent history of Bangladesh, its demography and its political situation:

    RECENT HISTORY

    2.1 The United Kingdom partitioned its former colonial territory into the separate states of India and Pakistan in 1947. Pakistan was intended to be a home for Muslims and was divided into East Pakistan and West Pakistan. Tensions about language and identity led to civil war in 1971 and Pakistan split into Bangladesh (formerly East Pakistan) and Pakistan (formerly West Pakistan).

    2.2 The Awami League (AL) governed the new country for the first few years on a platform of Bengali nationalism. Its President, Sheikh Mujibur Rahman (the father of current Prime Minister Sheikh Hasina), was killed in a military coup in 1975. Decades of military rule followed until democracy was restored in the early 1990s.

    2.3 The Bangladeshi Nationalist Party (BNP) won the 1991 election under Prime Minister Khaleda Zia (widow of former president Ziaur Rahman, who was assassinated in 1981). Power alternated between the BNP and the AL between 1991 and 2006 with Bangladeshi politics being dominated by political violence and the rivalry between Zia and Hasina. After a brief period of caretaker/military rule, the December 2008 election was won by the AL, led by current Prime Minister Hasina, which has been in power ever since.

    DEMOGRAPHY

    2.4 The CIA World Factbook estimates Bangladesh’s population at just under 165 million people. Almost the entire population (98 per cent) is ethnically Bengali and 98.8 per cent of the population speaks Bengali (or ‘Bangla’). There are an estimated 75 other ethnic Indigenous groups, 27 of which are officially recognised. Sixty-one per cent of the population lives in rural areas, especially the flood-prone delta areas. Dhaka, the capital, has over 21 million people.

    …

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.

    3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.

    3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.

    3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.

    3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.

    3.70 Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.

23. The Tribunal notes there have been some recent political developments in Bangladesh since elections in January 2024. Below is a summary:

    Prime Minister Sheikh Hasina won her fifth term. Bangladesh’s national election took place on 7 January 2024, and the ruling party Awami League won the majority of available seats, 222 out of 299, 174[3] which gave Sheikh Hasina her fourth continuous term as prime minister and fifth term overall.175 Sheikh Hasina declared that the election was free and fair shortly after casting her vote when polls opened, 176 [4] but various governments, including the United States, publicly stated it was neither free nor fair.177 Of the 77 seats not won by the AL, 62 won by independent candidates who are mostly AL members or supporters, and 11 won by the political ally Jatiya Party members. 178 [5] The election turnout was low in comparison to previous elections, only about 40% in 2024 compared to 80% in 2018, for instance.179 The low turnout was attributed to the election boycott of the main opposition party Bangladesh Nationalist Party (BNP) who demanded the ruling Awami League party reinstate an independent caretaker government to preside the polls but to no avail. 180 [6]

    Political climate in Bangladesh was hostile and sometimes violent leading up to the election. Numerous protests were staged by the main opposition in Bangladesh leading up to the election, particularly from July to October 2023, some peaceful but others turned violent. [7] The BNP claimed that over 20,000 of its members including several members of its highest decision-making body were detained and jailed.[8] Human Rights Watch reported on 1 November 2023 that the opposition claimed nearly 5,000 party leaders and activists were arrested since July 2023 protests,[9] and at least 1,500 opposition members were arrested in the days leading up to the rally on 28 October 2023.[10] Although violence was committed on all sides, Human Rights Watch assessed that the mass arrests ‘appear to reflect orders from police officials to systematically arrest and convict opposition members so that they would be disqualified from participating in the national election.’[11] A rally held on 28 October 2023 turned violent, resulting in nearly 10,000 arrests, 16 deaths, and 5,500 injuries.186[12] Some detainees alleged that they were tortured.[13] The UK, Canada and Australia expressed concerns about the repression trend in the country.[14] Overall, the Office of the High Commission for Human Rights (OHCHR) reported in January 2024 that ‘some 25,000 opposition leaders and supporters were arrested, and 56 killed in election related violence, including alleged torture and deliberate denial of healthcare for political prisoners, excessive use of force by law enforcement authorities, arson, and violence by unidentified groups’, none of which had have been independently investigated.[15]

    ASSESSMENT OF CLAIMS AND FINDINGS

    [3] The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923

    [4] 'Bangladesh’s Sham Election and the Regression of Democracy in South and Southeast Asia', Joshua Kurlantzick, Council on Foreign Relations, 10 January 2024, 20240208101011; 'Bangladesh election: PM Sheikh Hasina w ins fourth term in controversial vote', Ethirajan Anbarasan & Kelly Ng, BBC News, 8 January 2024, 20240108111912; 'Bangladesh's Hasina w ins re-election after polls without opposition', The Straits Times, 8 January 2024, 20240109100453

    [5] 176 The Economist reported 222 out of 299 seats being contested. 'Bangladesh’s prime minister, Sheikh Hasina, wins a fifth term', The Economist, 8 January 2024, 20240112154923

    [6] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845; also see the USDOS website ww.state.gov/parliamentary-elections-in-bangladesh

    [7] 'Bangladesh opposition calls for poll boycott as PM Hasina kicks off campaign', Ruma Paul, Reuters, 20 December 2023, 20231221145848; 'Bangladesh: Violent Autocratic Crackdown Ahead of Elections', Human Rights Watch (HRW), 26 November 2023, 20240116115041; 'Bangladesh: key opposition figure jailed after rally turns violent', Guardian (Australia edition), 30 October 2023, 20240208101423; 'Why is the Bangladeshi opposition protesting against Sheikh Hasina’s gov’t?', Al Jazeera, 30 July 2023, 20230731092011

    [8] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845

    [9] 'Bangladesh: Excessive Force Against Political Protesters', Human Rights Watch (HRW), 2 August 2023, 20230822134241; 'Bangladeshi Police Accused of Conspiring Against Opposition Candidates', VOA News, 17

    [10] 184 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359; also see 'Bangladesh: key opposition figure jailed after rally turns violent', Guardian (Australia edition), 30 October 2023, 20240208101423

    [11] 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359

    [12] 'Bangladesh election: PM Sheikh Hasina w ins fourth term in controversial vote', Ethirajan Anbarasan & Kelly Ng, BBC New s, 8 January 2024, 20240108111912; 'Eleven dead, scores hurt in Bangladesh political violence', UCA New s (UCAN), 1 November 2023, 20231102090914

    [13] 'Bangladesh: Violence Erupts Amid Demands for Fair Election', Human Rights Watch (HRW), 1 November 2023, 20231101172359

    [14] 'Instability Looms Over Post-Election Bangladesh', Mubashar Hasan, The Diplomat, 26 January 2024, 20240129092845

    [15] 'Bangladesh: Government must prioritise human rights in its fourth term', OHCHR, 24 January 2024, 20240308132521

    Identity and country of reference

1. Based on the identity documents and with no evidence to the contrary, the Tribunal assesses and finds that the applicant is a Bangladeshi national and that Bangladesh is the applicant’s country of reference for the purposes of the refugee criteria and the complementary protection provisions in the Act.

   Third country protection

2. There is no evidence to suggest that the applicant has the right to enter and reside in a country other than Bangladesh, and accordingly, the Tribunal finds that the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.

   Credibility findings

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

6. In this matter, the Tribunal encountered a range of adverse credibility concerns about both his religious and political claims as they have been advancing since his arrival in Australia. When considering these concerns on a cumulative basis, the Tribunal has assessed the applicant as not being a witness of truth and is unable to provide him with the benefit of the doubt that his critical written and oral claims for protection based on religious and political persecution are genuine or that much of the documentary evidence is not bogus or contrived solely for migration purposes.

   Accepted personal circumstances

7. Notwithstanding the Tribunal’s extensive adverse credibility findings in the decision, there are number of uncontested aspects of the applicant’s personal circumstances it accepts to be reliable and credible, which are outlined below:

   ·     The applicant was born in [Month Year] in [Village] in the Madaripur district;

   ·     The applicant’s father who had been an agricultural worker, passed away in 2019 while his mother continues to reside in Madaripur;

   ·     The applicant has [siblings];

   ·     The applicant was born into a Muslim family and raised in the Madaripur district of Bangladesh;

   ·     The applicant speaks, reads and writes Bengali and understands some English. Ethnically the applicant is Bengali (Bangla);

   ·     The applicant’s highest level of educational attainment was the equivalent to Year 8 in the Australian education system, which can be reasonably characterised as limited;

   ·     After leaving school, the applicant mainly worked as an agricultural labourer before departing Bangladesh;

   ·     The applicant married a Muslim woman in [Year];

   ·     The applicant has one [child], who is currently aged about [Age] years and one [child] who is currently aged about [Age] years;

   ·     In 2008, the applicant departed Bangladesh and travelled to [Country 1] where he remained until he departed for Australia in 2012. While in [Country 1], the applicant worked in various low-income jobs as [an occupation 1], as [an occupation 2] or labouring on [worksites]; and

   ·     Since arriving in Australia, the applicant has been working in low-income jobs and regularly remits his income back to his family in Bangladesh.

8. For the purposes of this decision, the Tribunal finds that the applicant’s home area within his country of nationality and reference is Madaripur. Madaripur is in the Dhaka metropolitan region on the western side of the Ganges River in a region known as the Bengal Delta.

   Religious claims and credibility concerns

9. The applicant has advanced a claim to hold a well-founded fear of persecution as an apostate from Islam, to have converted to Christianity, specifically Catholicism, while in Bangladesh and to have remained a practising Christian since arriving in Australia. In the applicant’s most recent statutory declaration from January 2024, the applicant states:

   I continue to be a practicing, Christian. I attend Church each Sunday at the [Church] in [Suburb]. I celebrate Christian traditions including Christmas and Easter. My religion continues to be very important to me. The uncertainty of the immigration process and concern for my family has greatly affected my well-being. My faith gives me hope and guidance. My fellow parishioners are also very welcome to me and provide me with support.

   I disagree with the primary decision makers view that Christians do not face issues in Bangladesh. I faced serious issues in Bangladesh, due to my conversion. The wider community believed that given I was born and raised as a Muslim, I should continue to follow the Muslim faith. Due to the issues, I faced in Bangladesh due to my conversion, I lived with fear of being killed. I suffered significant injuries from the mistreatment I experienced. If I was now to return to Bangladesh after living for a long time in a Western and secular society where I have continued to practice my Christian faith, I believe that I would continue to face harm.

10. At the hearing, the applicant, who was born into a Muslim family, explained how he became a Christian in a Roman Catholic Church while in Bangladesh and how he was harmed by people who objected to his apostasy from Islam. The applicant advised that his conversion to Christianity occurred in the two years prior to his marriage in [Year] after becoming involved in a Catholic parish in Chittagong around Christmas time and him being given Christian literature. He claimed to be baptised in Chittagong. Over time, the applicant attended church services clandestinely, but his conversion and Christian practice was discovered by neighbours.

11. The applicant’s neighbours in his home area were aware of his apostasy and they beat him about five times in the last two years he was in Bangladesh. The applicant could not report it because the police would not accept his apostasy or protect him. The Tribunal enquired why he did not resettle in Chittagong to which the applicant responded that his family was in Madaripur district, and he feared he was being tracked. As the applicant could not practise his Christian religion safely, he left the country.

12. He also elaborated on his participation in [Church] in [Suburb] (which is part of a network of evangelical Protestant churches) while residing in metropolitan Melbourne.

    Arrival interview

13. One of the serious credibility concerns about the applicant’s religious claims as mentioned in the delegate’s decision was the absence of mentioning his fears of religious persecution during the arrival interview in 2012. Otherwise, the first time the applicant raised these fears was at the time of application in January 2016 in a statutory declaration dated September 2013.

14. Throughout the protection visa application, the applicant has claimed that he raised these fears during the arrival interview with the Department. During the hearing, the Tribunal put it to the applicant that he did not mention any reasons based on his religion and undertook to put its credibility concern that he did not raise his conversion to Christianity in [Year] in his initial interview with the Department soon after his arrival. In the adverse information letter from February 2024, the Member said it had listened to the recording of the arrival interview where the applicant responded to the question ‘What is your religion?’ by responding ‘Muslim’ without any additional information or qualifications. The representative in the submitted response to the information, wrote:

    The Applicant instructs that he may have understood that he needed to disclose his religion at birth at his arrival interview. He instructs that at the time he was very overwhelmed by the long and arduous journey to Australia and the poor conditions in immigration detention and may have been confused. With respect, we submit that arrival interviews are usually rushed and given the applicant has provided consistent evidence with respect to his conversion throughout his subsequent interactions with the Department which have been ongoing for many years, information in the entry interview should not be relied upon to discount his claims for protection.

15. The representative is correct to caution decision makers relying on omissions at arrival interviews. Such interviews, while supported by interpreters, are not exhaustive statements for asylum seekers and new arrivals are faced with some challenging circumstances. Furthermore, in isolation of other doubts about the evidence presented, the Tribunal would not certainly rely on it or place undue weight on it.

16. However, in this matter, the Tribunal does not accept an applicant holding a genuine, deep or urgent fear of religious persecution on return to Bangladesh would overlook such a central claim involving risks and incidents of physical harm against him motivated by his religious conversion.

17. The 2019 DFAT country report assesses that Christians face a moderate risk of societal violence in the form of localised incidents and the possibility of mob violence. Because of the urgency and seriousness of the applicant’s claims to be a Christian in a country where incidents of persecution have been recorded and because such a religious claim is so central to the applicant’s conscience and identity, it was reasonable to expect the applicant to nominate his religion as Christianity or to have mentioned his apostasy from Islam as an integral part of the reasons for his departure from Bangladesh.

18. Although the Tribunal is not relying on this adverse credibility concern, in the context of other credibility concerns about the applicant’s religious claims, the Tribunal does place reasonable significance on it as undermining the credibility of those claims.

    The applicant’s knowledge of Christianity and experiences in Bangladesh

19. During the hearing, the Tribunal asked when he stopped believing in Islam or how he became disillusioned. The applicant said when he was a Muslim, he would keep the fast and offer prayers at Eid but in [Year], there was a gang and they attacked people and rioted. This prompted the applicant to consider that this behaviour is within Muslims. The attacks, the applicant continued, were triggered by a dispute as to when the fast ends. The difference is only about one day. (The Tribunal has been able to find some country information to support the applicant’s claim there is a very particular controversy as to determine the start of a new lunar month.)[16] The Tribunal asked whether this represented most Muslims. The applicant did not directly respond and stated such quarrels over one day should not have occurred. The Tribunal asked if there were any other issues leading to his disillusionment with Islam. The applicant said the other reasons were about politics and working with his brother. The Tribunal asked as to how that was relevant to his apostasy and conversion. The applicant said that at religious gatherings there were riots among Muslims and he, therefore, cannot remain a Muslim. The Tribunal enquired whether there was anything in the Quran, the Muslim holy book. The applicant said both the Quran and the Bible say there is to be no rioting. The Tribunal asked again if he had objections to the Quran. The applicant did not respond. The Tribunal asked whether there was anything about the life of the Prophet Mohammad, the founder of Islam, which the applicant found objectionable, to which he replied by saying he had no objections. The Tribunal asked if he rejects or does not accept Mohammad as ‘The Prophet’. The applicant said no but he does now. The Tribunal asked again without a clear answer. At this point in the hearing, there was a short adjournment and on return the thread of this questioning resumed. The Tribunal asked if he had a current view of the Prophet Mohammad. The applicant responded that he did not have an opinion on this as he does not follow Mohammad. The Tribunal said it would be reasonable for him to do so as an apostate and the Tribunal asked for comment. The applicant said ‘no’.

    [16] Ramadan and Eid’s Crescent Wars, by Ibrahim Elhoudaiby, New Lines Magazine, 9 April 2024, The article further states: ‘Muslims all over the world are divided into two broad camps, one insisting on the necessity of the tradition of crescent-sighting to determine the dates of Ramadan and Eid, and the other arguing in favor of using astronomical calculations. The controversy is often framed as a dispute between a minority of modern rational Muslims advocating the use of scientific knowledge, and a majority of traditionalists, if not fundamentalists, opposing it.’

20. The applicant did not provide an emphatic and convincing account as to why he became disillusioned with Islam. On the one hand, he claimed to have feelings of disillusionment which had been triggered by the poor and internecine behaviour among some Muslims. While on the other, he was evasive and ambivalent about criticising Mohammad as The Prophet and Islam’s holy scriptures. This invited the Tribunal to consider that the applicant’s claim to be an apostate lacked overall credibility and invited further questions about this specific claim.

21. The Tribunal enquired into when he stopped believing in Islam and whether he confided in his wife about this. The applicant said he abandoned Islam in [Year] but he did not tell his wife after his marriage, although some family members came to know about it. The Tribunal sought clarification as to whether he had ever told his wife about his apostasy and conversion. The applicant said he never told her directly; however, his wife confronted him and they came to a mutual understanding to have separate religions in a tolerant manner. He did not raise it with her because he did not want quarrels or to put his spouse under mental pressure which might trigger a heart attack. The Tribunal said that this seemed a far-fetched fear to hold, to which he added that apostasy can cause mental health problems among family members.

22. The Tribunal further enquired as to how his conversion became known. The applicant said he had been going to church via a bus and someone saw him visiting a church. In [Year], the applicant said he was followed visiting a church at Christmas time.

23. The Tribunal asked how he came to be accepted into Christianity. The applicant explained that he went to a church one time and the Christians there warmly showed him around and gave him a Christian Bible to read. After reading some of the Bible, he liked it. The Tribunal sought further information about the church. The applicant said the church was in Chittagong and that he would travel to it on the day before Sunday or a feast day. The Tribunal asked as to what Christian denomination the church belonged and what was the name of the church. The applicant said he did not know the name of the church but said it was a Catholic church. The Tribunal asked as to what religious instruction or lessons he received. The applicant said he was given a book. The Tribunal said people seeking to join a Christian church usually participate in lessons to provide historical and other context. The applicant said he did receive lessons when he attended services during which they talked about the Bible and talked about looking after one’s family and daily life.

24. The Tribunal asked the applicant to describe the two broad parts the Christian Bible was divided into. The applicant said there is the ancient times and the modern times. He said in ancient times, the people used the Quran and the Bible but could not clearly state what the modern times were about. The Tribunal asked whether he knew when the modern times began in the Bible. The applicant said from Adam, the first human on . The Tribunal asked if he liked any book of the Christian Bible. The applicant said he preferred the whole book.

25. The Tribunal asked some specific questions about Christianity such as who founded the religion and to elaborate on the life of that founder. The applicant said Jesus was the founder and he preached Christianity. The Tribunal asked into what religion was Jesus born, to which the applicant answered ‘Christianity’. The Tribunal sought clarification. The applicant said Jesus was not Christian when he was born and then he spread Christianity. When the Tribunal asked the applicant to elaborate on his knowledge of Jesus’ life, he said he came to spread Christianity and to be good to each other. The Tribunal asked the applicant to nominate differences between Islam and Christianity, to which he responded Mohammad spread Islam. The Tribunal asked what inspired him about Jesus’ life. The applicant said he died on the cross and that he considers Jesus the father. He said he learned about Jesus’ death and that he tolerated so much for spreading Christianity. The Tribunal asked the applicant to recall anything it is claimed that Jesus said. The applicant said that if you find someone who needs help, help them and do not cause riots and try to lift up the community. The Tribunal asked if there was anything else he liked about the Christian Bible, to which he responded the Bible says to follow the parts you like and see for yourself what is good for you.

26. These questions put to the applicant were straightforward, open-ended, and not at all obscurantist or esoteric. The Tribunal finds the applicant’s overall knowledge of Christianity is shallow and often erroneous. It was not unreasonable to expect a convert to Christianity since the late 1990s, as the applicant has claimed to be, to nominate the Old and New Testaments as distinct parts of the Christian Bible or to know that Jesus was born into a Jewish family and community who practised Judaism or to recall one of the distinctive sayings, parables or events of Jesus’ life as it would be discussed in lessons or during Christian services. The Tribunal notes the applicant’s responses about Christianity and his general inability to clearly delineate between Islam and Christianity as systems of belief as demonstrative of a person with little genuine interest in Christianity. The applicant’s overall responses to these questions have invited the Tribunal to further consider that his claims to be a convert to Christianity are lacking in credibility.

27. When the Tribunal raised its credibility concern about a lack of commensurate knowledge of a convert since the late [Decade], the applicant said he has not been able to obtain a Christian Bible translated into Bengali. The Tribunal pointed out that access to the Bible in Bengali, including digital copies, would be possible via the internet. The Tribunal pointed out that he had one while in Bangladesh according to oral evidence. The applicant said it had been damaged. Given the lack of barriers to the Christian Bible in Bengali and other material in that language, the Tribunal finds these responses are lacking in persuasiveness and have further invited concerns that his religious and other claims lack overall credibility.

28. The Tribunal asked about the applicant’s participation in Christian worship and other religious activities. The applicant claimed that while in Bangladesh he went to regular lessons about twice a month and became friends with the local priest he described as [Mr F]. The Tribunal asked whether he participated in any induction ceremonies. The applicant said he had not. The Tribunal specifically asked if he had been baptised. The applicant said he had. The Tribunal asked what the baptism ceremony entailed. The applicant said he was taken into the church and was converted after some praying. The Christians, he further said, told him to go to church on Sundays. The Tribunal asked whether the applicant has a copy of the certificate of baptism from the church in Chittagong, but no one would go to the church to obtain a copy and have it forwarded to Australia. The Tribunal asked why no one, such as a friend or a priest, had emailed it to him as the parish would keep a record. The applicant said that it was a long time ago.

1. In the context of the Tribunal’s other credibility concerns, these responses strongly indicate that the applicant did not participate in a baptism in a Catholic church. Such baptisms are usually preceded by joining a parish and attending catechism classes to learn about becoming a Catholic. This can last 18 months. Baptism involves a distinctive ceremony involving pouring of water over the head of the baptised, witnesses and specific prayers. Had the applicant been a genuine convert to Catholicism, it would not be unreasonable to expect the applicant to recall some of the aspects of the rites of initiation into a Catholic parish and faith. Moreover, there is no baptism certificate to corroborate this claim, despite being in Australia for more than 10 years which should be sufficient time to contact the parish directly by phone or email or both.

   Claimed travel between Madaripur and Chittagong

2. During the hearing, the Tribunal raised concerns about the applicant attending a church in Chittagong as travelling there would be very time-consuming given his home area was some distance away. The applicant insisted that he did this. As part of the adverse information letter, the Tribunal put it to the applicant that the claimed travel lacked credibility because it was time-consuming, impractical and costly given his claimed circumstances.

3. The applicant’s representative provided the following response on behalf of the applicant:

   The Applicant instructs that he was genuinely committed in learning about Christianity however thought it was safer to attend a church in an area where he was not known, rather than in his local area. The Applicant instructs that he watched a news report about a Church in Chittagong, and he became interested and decided to travel to Chittagong to learn more. He instructs that his brothers were wealthy given their political involvement and they would given him money for assisting them. He would use this money to cover the costs of his travel to Chittagong on a semi regular basis. He instructs that due to his brothers’ political involvement, his family lived comfortably, however it was not overly expensive to travel to Chittagong. With respect, we submit that the travel the applicant undertook to practice his faith indicates that his Christian faith is very important to him. Further, it is plausible the applicant felt it may have been safer to practice his faith outside his local area to avoid detection. However, it is apparent that his religious beliefs became known by the wider community and as such he faced serious issues due to same. The Applicant instructs that he has continued to practice his faith in Australia. With respect, we submit that it is apparent the applicant is a genuine Christian convert and as such would be at further risk of serious harm due to his religious beliefs if returned to Bangladesh.

4. The Tribunal has considered the applicant’s late explanation as lacking overall credibility. The Tribunal notes the applicant had not previously claimed his brothers were wealthy or that his family lived comfortably. Indeed, the applicant provided oral evidence to the Tribunal that his father did not own his own land and was an agricultural worker, indicating that his family did not live comfortably and that his brothers were unlikely to be wealthy.

   religious activitiesSur place

5. The Tribunal asked whether the applicant had been attending Christian services in Australia. The applicant said he had been attending [Christian] services in [Suburb] nearly every Sunday. The applicant claimed he had been attending since 2014 and the church had different people and was led by people from different nationalities. The Tribunal asked what denomination the [Church] belonged to, to which the applicant said there are Catholic and evangelical Christians worshipping at the same venue. The Tribunal pointed out that there was a Catholic church in [Suburb].

6. The Tribunal accepts that converts to Christianity may choose different denominations over time and that practices and even enthusiasm vary, ebb and wane. However, in the context of his paucity of knowledge of Christianity and other credibility concerns the applicant’s sur place religious activities demonstrate a lack of curiosity of the local Catholic services he could obtain while in [Suburb] and lack of knowledge that Catholics would not be likely to share a venue for worship when they have their own church and facilities.

   The applicant’s claimed political activities undermining his religious claims

7. In the adverse information letter, the Tribunal wrote to the applicant that the available country information indicated that both major Bangladeshi parties, the AL and BNP, draw the vast majority of their membership and support from Bangladesh’s predominantly Muslim ethnic Bengali population and the AL emphasises the importance of the national linguistic identity (Bengali) while the BNP favours the national religion, Islam, as a significant marker of identity. Under a BNP government in 1977, Bangladesh’s constitution was amended to establish Islam as the fundamental principle of Bangladeshi society. In 2010, the AL government restored the principle of secularism but retained Islam as the state religion.

8. The letter further stated that the applicant claimed that the period during which he was involved with the BNP overlapped with the period he converted from Islam to Christianity. The applicant’s claims entail a lack of religious freedom to choose his faith without persecution because he fears being harmed for rejecting Islam in favour of Christianity. Given this, it would not be reasonable for a decision maker to expect that an apostate from Islam would support a less secular or a more stridently Islamic Bangladeshi party by not supporting the BNP, and this undermines the credibility of both the religious and political sets of claims advanced by the applicant.

9. The applicant’s response was included in the representative’s submission dated:

   The Applicant instructs that he views political and religion and two separate spheres in Bangladesh and accordingly believed he could be Christian and a supporter of the BNP. With respect, we submit that the ideology of the BNP is not solely based on religion and as such, it should be accepted that the applicant is a BNP supporter and Christian convert. Further, given the applicant’s education level, it is plausible he did not undertake a theoretical exploration of the parties beliefs on religion and therefore supported the BNP solely based on their political agenda.

10. This response lacks persuasiveness. It is not consistent to claim that the applicant had rejected Islam for inciting rioting, that he had been beaten by Muslim neighbours and fears further repercussions for his apostasy from Islam to another religion or had to travel great distances clandestinely to avoid harm, on the one hand; while claiming the applicant’s religious apostasy existed in a separate sphere of thinking by compartmentalising it from his support for the BNP and its platform to promote Islamic identity and dilute religious freedoms. Even if the applicant’s educational attainment is low, it is far-fetched to suggest he could not see the obvious incompatibility of his religious conversion with his support of the BNP.

11. The Tribunal has considered it was more consistently convincing that the applicant’s support for the BNP was due to his brothers’ support. However, this would somewhat undermine the applicant’s claim that his brothers provided financial support to the applicant to clandestinely travel to Chittagong to practise Christianity as an apostate as their membership of the BNP would indicate they would not support the applicant’s rejection of Islam, contrary to the party’s policies to consolidate Islam’s pre-eminent role in shaping society’s values. The Tribunal notes that the wealth of the applicant’s brothers and their support for his conversion were raised only in the applicant’s response to the adverse information letter. In the context of the numerous inconsistencies and the lack of knowledge about Christianity presented by the applicant, the compelling element of this explanation is substantially diminished.

    Cumulative findings

12. When considering the adverse credibility concerns about the applicant’s claims to be an apostate from Islam and a convert to Christianity on a cumulative basis, the Tribunal does not accept the applicant’s claims are genuine nor that they reflect the reasons, at least in part, the applicant departed Bangladesh for [Country 1] and sought the protection obligations of Australia.

100.   The Tribunal has reached this decision on a cumulative basis while being mindful that decision makers should not be the arbiter of doctrine: Wang v MIMA (2000):[17] Degrees of understanding will vary from person to person. For example, it may be wrong to assume that all adherents of a particular religion must have a consistent minimum understanding of its tenets.[18]

[17] As stated by Gray J in Wang v MIMA (2000) 105 FCR 548 at [16]: Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.

[18]        WALT v MIMIA [2007] FCAFC 2 at [28]. See also SZOIW v MIAC [2010] FMCA 568 at [15] where the Court held that the Tribunal had impermissibly set itself up as an arbiter of religious knowledge by relying upon a witness’s failure to meet its standards of religious knowledge. The Court also expressed concern that the Tribunal did not fully take into account the cultural, social and religious difference that might exist in China when assessing the religious knowledge of the witness. See also SZRRV v MIAC [2012] FMCA 997 at [24] where the Court was critical of the Tribunal’s attempt to test the applicant’s Christian faith by reference to her heterosexual lifestyle, stating that this line of questioning was not appropriate and that it was wrong to assume that modern concepts of marriage have much to do with fundamental Christian beliefs or indeed, whatever concepts of marriage existed at the time of Jesus.

101.   The applicant’s ambivalence about rejecting Islam and his shallow knowledge of Christianity were not commensurate with his claimed duration in being engaged in Christian education and practices. Additionally, the applicant provided a fanciful explanation about travelling long distances on a regular basis between his home area and Chittagong. The applicant was unable to convincingly reconcile his and his brothers’ support for a political party associated with Muslim chauvinism with his apostasy or his brothers’ assistance in his clandestinely practising Christianity. The Tribunal has also placed an adverse credibility weighting on his not raising his fears of religious persecution during the arrival interview.

102.   The Tribunal does not rely on any one of these credibility concerns in making its decision that the applicant’s religious claims for protection lack overall credibility. However, taken in their totality, the Tribunal is confident in making the following findings:

103.   While it is accepted the applicant was born in a Muslim family, he did not genuinely convert to Christianity of any Christian denomination before or after his marriage. The applicant is not a disillusioned Muslim to the extent that he developed a genuine interest or curiosity in another religion or after he was invited by Christians to Christmas celebrations or that he was inspired by Christian architecture, design or decorations or the warmth and welcoming nature of Christians. Neither is it accepted the applicant attended Christian or Catholic services on a regular basis or was provided with a Christian Bible he could read or that he was inspired by the mission, life and death of Jesus or that he ‘was captivated by Christian teachings’ or was ‘emotionally aroused’ by Jesus’ mother.

104.   Nor is it accepted that the applicant’s paucity of knowledge of Christianity is attributable to his low educational attainment or the difficulties in exploring Christianity in Bangladesh or as a migrant in Australia. It does not accept he had difficulties or barriers in obtaining information about Christianity while in Australia. The Tribunal finds his lack of knowledge is attributable to having no genuine or credible interest in Christianity or its teachings, practices, history or customs.

105.   Based on this adverse credibility finding – cumulatively considered, the Tribunal does not accept the applicant underwent any induction or was baptised under any of the Christian rites from any Christian denomination, either in Bangladesh or elsewhere, or that he attended church services on a regular basis, as claimed.

106.   Furthermore, the Tribunal does not accept the applicant ever practised Christianity clandestinely until it was discovered by Muslim neighbours. It does not accept his wife or brothers or anyone else assisted him in doing so. It does not accept there is any credible basis for the applicant’s claims that he suffered threats, physical harassment and physical maltreatment as an apostate from Islam to Christianity or any other religion whereby he feared further violence or for his life should he remain in Bangladesh.

107.   The Tribunal finds that the applicant did not nominate religious persecution in his arrival interview in 2012 because he had not experienced any harassment or harm based on his fabricated claims about religious persecution in Bangladesh. Any sur place religious activities, such as attending a church in Australia, have been undertaken only to augment this weak set of claims.

108.   Because the applicant’s claims about religious persecution are fabricated, the Tribunal does not accept he held any genuine, deep or urgent fears of religious persecution, either subjectively or objectively understood, in returning to Bangladesh, either while in [Country 1] or on arrival in Australia or at the time of application or at the scheduled hearing. There is no subjective or objective basis that the applicant holds any genuine, deep or urgent fears arising from religious persecution or for any related reason mentioned under s 5J(1)(a), in returning to his country of origin, either now or into the reasonably foreseeable future.

109.   Should the applicant return to predominantly Muslim Bangladesh, he will not be imputed as an apostate from Islam or as a convert to another religion by family members, neighbours, political actors or the authorities. The applicant has never claimed to belong to a Muslim minatory in Bangladesh. He will be recognised as a Muslim and not suffer a real chance of serious harm or a real risk of significant harm as a Muslim on return.

110.   In the context of the Tribunal’s adverse credibility findings, it assessed there is no credible basis to accept any of the applicant’s claims to have rejected Islam for any branch of Christianity or that he experienced any harmful incidents arising from these religious claims or that his activities in Australia are authentic acts of conscience. The Tribunal accordingly finds he does not have a real or substantial chance of being seriously harmed based on these contrived claims about his religious conversion to Christianity or as a Muslim. Therefore, the applicant does not hold a well-founded fear of persecution based on his religion, contrived or otherwise, or any other related reasons mentioned under s 5J(1)(a), in returning to his country of origin and nationality, arising from being a failed asylum seeker or as a returnee, either now or into the reasonably foreseeable future arising from his set of fabricated claims about religion.

111.   In this regard, the applicant does not meet s 5H(1) or s 36(2)(a).

112.   Based on the same adverse credibility findings, cumulatively considered, about fearing persecution based on his religious claims for protection, it follows that 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 or substantial risk the applicant will suffer significant harm.

113.   In this regard, the applicant does not meet s 36(2)(aa).

114.   In making these adverse credibility findings about religion, the applicant has invited it to consider that his claims for protection are embellished or contrived or that the documentary evidence submitted to corroborate these claims are fraudulent or fraudulently obtained.

Political opinion claims

115.   The applicant’s political opinion claims, by way of summary, is that while in Bangladesh he joined the BNP. Three of his brothers were also actively involved with the BNP and/or its youth wing. When he started supporting the BNP he began to receive problems from the ruling party, the AL. The AL supporters were approaching him to work for them as they were looking to become stronger. They saw that he was effective in supporting the BNP in taking an active role in supporting the party. They identified him as a valuable member for their party. He refused their offer and they sought to punish him. They would attack him and his younger brother when they were returning home from work. He was beaten on two or three occasions as he was identified as a political opponent. The violent AL supporters warned the applicant that if they apprehended him again, they would kill him. He immediately began to make arrangements to depart Bangladesh as his life was at urgent risk of harm. He fled shortly after the 2008 elections, [in] January 2009, travelling to [Country 1] by air with one of his brothers. Two of the applicant’s brothers who were prominent BNP supporters, have been missing for many years and the applicant is uncertain of their whereabouts and is very worried about them.

116.   The applicant has been active in the BNP’s branch in Victoria since 2014 and has submitted photographic and reference letters as support for his membership and activities. The applicant describes Bangladesh as being led by AL’s tyrannical leaders and claims that the authorities have brought false charges against him. The applicant has claimed he has documentary evidence of charges against him for serious offences as well as a court order. Should the applicant be forced to return to Bangladesh, it is claimed by the applicant he will be detained on arrival leading to arbitrary and indefinite detention, torture or being killed.

117.   By way of background, in 2006 Bangladesh was governed by a military-backed caretaker government which deferred the scheduled elections and implemented an anti-corruption drive which saw the arrest of both the AL and the BNP leaders along with large numbers of AL and BNP supporters. This period came to an end in 2008 with the release of the BNP and AL leaders and a December 2008 election which was won by the AL. The AL has ruled Bangladesh up to the present day having also won the successive 2014, 2018 and 2024 national elections.[19]

[19] DFAT, "DFAT Country Report: Bangladesh", 20 October 2014, CIS2F827D91369; International Crisis Group, "Political Conflict, Extremism and Criminal Justice in Bangladesh", 11 April 2016; Bertelsmann Stiftung, "BTI 2016 — Bangladesh Country Report", 29 February 2016; US Department of State, "2015 Report on International Religious Freedom: Bangladesh", 10 August 2016, OGD95BE926656; Freedom House, "Freedom in the World 2017 - Bangladesh", 2 June 2017.

118.   In most regards, the BNP and the AL do not differ much in their approach to politics, but they do hold strongly opposing views on the role of religion in the state, with the BNP favouring an increased role for Islam while the AL takes a more secular position. Both parties draw the vast majority of their membership and support from Bangladesh’s predominantly Muslim ethnic Bengali population and the AL emphasises the importance of the national linguistic identity (Bengali) while the BNP favours the national religion (Islam) as a significant marker of identity.

[22] “Actions for 'false, confusing' posts against govt, police, military: Home ministry”, Prothom Alo, 14 October 2020 available at 20201015093944; “Bangladesh cracking down on social media ‘disinformation’”, bdnews24.com, 13 October 2020 available at

[23] Freedom on the Net 2021 - Bangladesh', Freedom House, 21 September 2021 available at 20210928153608

[24] ‘Bangladesh man held over Facebook photos of PM’, Hindustan Times, 12 July 2012, available at ‘Bangladesh student faces sedition over Facebook post’, Bangkok Post, 4 June 2012 available at Y. Phillips, ‘Facebook death penalty’, News Corp Australia, 14 January 2012 available at CX296552

160.   However, the applicant is not a senior BNP leader or activist in Australia and cases of ordinary members being prevented from returning or being harmed on return are reportedly related to social media profiles or association with high-profile BNP family members. The applicant does not credibly have such connections. Neither does he have a social media profile.

161.   Based on this country information and in placing little weight on the BNP associations the applicant has forged while in Australia, the Tribunal is not satisfied the chance of serious harm based on his imputed political opinions reaches the threshold of being a real chance. Therefore, the applicant’s chance of such persecution based on an imputed political opinion and any related reasons under s 5J(1)(a) is a remote and insubstantial chance, should he return to Bangladesh, either on arrival or in the community.

1. The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[25] Based on the Tribunal’s ‘real chance’ findings, 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 or a substantial risk that the applicant will suffer significant harm arising from his imputed anti-government political opinion or sur place political activities in Australia, as required in s 36(2)(aa).

   [25] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s 36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.

163.   For completeness, the Tribunal has considered whether the applicant faces a real chance or serious chance of harm for one of the nexus reasons mentioned in s 5J(1)(a) or a real risk of significant harm arising from being a failed asylum seeker or forced returnee.

164.   Notwithstanding the adverse credibility findings above, the Tribunal accepts the applicant has been absent from his country for a considerable period and that time has been spent in a Western country – a factor the applicant has mentioned which heightens his risk of persecution in being returned to his country of nationality and reference.

165.   Available country information strongly indicates that Bangladeshis appear to enter and leave the country without significant issues. DFAT assesses in late 2022 that ‘most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.[26] It is possible, however, for a person who is involuntarily returned by a foreign government after travelling on a fraudulent document to be detained and questioned by police once back in Bangladesh, but these cases do not form a substantial pattern but rather are isolated and high-profile cases.[27] The government does not have the capacity or interest to check or monitor tens of thousands of Bangladeshis’ movements across the border.[28] With convicted criminals and persons wanted by security forces and intelligence agencies, authorities do conduct immigration checks on them and determine whether to issue their passports, but may also use checks to prevent people from leaving the country.[29] Media reports in 2020 showed that returnees – who were either serving prison sentences overseas and have returned to Bangladesh following commuting of their sentences or were victims of people trafficking – have been imprisoned under the Code of Criminal Procedure and, in some cases, denied bail, for allegedly ‘tarnishing the image of the government’.[30]

[26] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.5.26, p.37, 20221130110831

[27] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.5.25, p.37, 20221130110831

[28] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.5.24, p.37, 20221130110831

[29] 'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.5.20, p.36, 20221130110831

[30] 'Pardoned abroad, punished here', The Daily Star (Bangladesh), 19 July 2020, 20200719212246; ‘“Tarnishing the image of the government”: 186 returnees denied bail’, The Daily Star (Bangladesh), 23 August 2020, 20200824084507; '83 returnees from Vietnam, Qatar sent to jail', New Age (Bangladesh), 01 September 2020, 20200902084150; 'Another 32 migrants land in jail', The Daily Star (Bangladesh), 29 September 2020, 20200929085815; '2020 Country Reports on Human Rights Practices: Bangladesh', US Department of State, 30 March 2021, Sect.1d, p.9, 20210331145218; please note that COIS found no similar repots since.

166.   In making these findings the Tribunal is doing so in the context of its adverse credibility findings and the imputed political opinion findings above. The applicant has a feeble political profile, a deficient interest in political involvement and an absence of any credible criminal profile. His travelling to Australia does not meaningfully contribute to him being a person of adverse interest to the authorities. Considering these factors and based on the country information about failed asylum seekers being unlikely to draw adverse attention, the Tribunal assesses that the applicant does not have a real chance of serious harm or a real risk of significant harm on return. The applicant, on return, will have a remote or insubstantial chance of being questioned for departing on a fraudulent document or being suspected as a criminal evading court proceedings or a person of interest. This is even the case when taking into account him being imputed as a failed asylum seeker with an imputed anti-government political opinion. Therefore, the applicant does not hold a well-founded fear of persecution based on any reasons mentioned under s 5J(1)(a), in returning to his country of origin and nationality, arising from being a failed asylum seeker or a returnee, either on a voluntarily or involuntarily basis, into the reasonably foreseeable future.

167.   Based on the Tribunal’s ‘real chance’ findings, 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 or a substantial risk that the applicant will suffer significant harm on the basis of being a forced returnee or as a failed asylum seeker with an imputed political opinion, as required in s 36(2)(aa).

Cumulative findings regarding review application 1836709

168.   The applicant did not advance any further claims. The Tribunal is satisfied there are no more residual claims to consider in this application for review.

169.   Based on the adverse credibility findings above and on the applicant’s accepted circumstances, both individually and cumulatively considered, the Tribunal does not accept that the applicant faces any real chance of serious harm based on his overall circumstances, on return to anywhere in Bangladesh for any reasons outlined in s 5J(1)(a) of the Act in the reasonably foreseeable future.

170.   The Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution that satisfies s 5J(1)(a), (b) or (c) and that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or within the meaning of refugee as required by s 5H(1).

171.   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).

172.   Having considered all the applicant’s accepted claims and circumstances in the context of the Tribunal’s adverse credibility findings outlined above, 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 the applicant will suffer harm by way of him being arbitrarily deprived of his life; the death penalty being carried out on him; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment, as required in s 36(2)(aa).

1. 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).

2. 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 criteria in s 36(2).

   No jurisdiction in relation to review application 1904378

175.   As discussed in the hearing, review application 1904378 was lodged at the Tribunal on 26February 2019, i.e., after the lodgement of review application 1836709. Both review applications were for the Tribunal to review the same delegate’s decision refusing to grant the applicant a protection visa on 17 May 2017.

176.   The Tribunal said that it was open to the applicant to withdraw review application 1904378. If there is no withdrawal, the Tribunal will proceed to find the review application numbered 1904378 to be an invalid duplicate.

177.   At the time of writing this decision, the applicant has not asked to have the application for review to be withdrawn.

178.   Given the discussion above, the Tribunal does not have jurisdiction in relation to the matter numbered 1904378.

DECISION

179.   In relation to review application 1836709, the Tribunal affirms the decision not to grant the applicant a protection visa in relation to this review application made on 14 December 2018.

180.   In relation to review application 1904378, the Tribunal does not have jurisdiction in relation to this review application made on 26 February 2019.

Brendan Darcy
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.

…

July 2023, 20230719111332

20201014093419

'DFAT Country Information Report Bangladesh', Department of Foreign Affairs and Trade, 30 November 2022, para.5.24, p.37, 20221130110831