1910952 (Refugee)

1910952 (Refugee) [2022] AATA 3260 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1910952
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Ann Duffield
DATE:26 July 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 July 2022 at 9:11am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – membership of particular social groups – victim of violence and young woman – fear of harm from father’s murderers – possibly politically motivated extortion attempt on father and harassment and threats to applicant, mother and sister – investigation and prosecution delayed by police and judicial corruption and political interference – disappearance of sister’s husband and sister’s protection visa in third country – consistent, credible and compelling evidence – delays in departing and applying for protection attributable to young age, trauma and mental health – marriage to temporary visa holder – country information – effective state protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(4), (5), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIEA v Guo (1997) 191 CLR 559
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh applied for the visa on 23 November 2016. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 1 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant was born on [Date] and has provided evidence in the form of her passport that she is a citizen of Bangladesh. The applicant provided the Department of Home Affairs with biometric and other identifiers to confirm her identity and the Tribunal has no reason to revisit those matters. I am satisfied that the applicant is who she claims to be and is a national of Bangladesh. For the purposes of this assessment therefore the Tribunal considers Bangladesh her receiving country.
The applicant was granted a student visa on 18 November 2015 and arrived in Australia [in] January 2016 at age [Age 1]. She lodged a valid application for a protection visa on 23 November 2016.
On 26 April 2019 the delegate for the department of Home Affairs refused that application as they were not satisfied that there is a real chance of persecution for one or more of the Convention reasons if the applicant returned to her country of nationality. The delegate was further not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removing the applicant from Australia to her receiving country there was a real risk that she would suffer significant harm.
The applicant married [Mr A], a Bangladeshi in Australia on a temporary work visa [in] March 2022 in [Suburb], NSW. She has provided a copy of the Registered Marriage Certificate.
COUNTRY INFORMATION
The following information is from the Country of Origin Information Services Section (COISS) Effective from 5 May 2022; the Department of Foreign Affairs and Trades Country Report: Bangladesh; 2019 and Department of Home Affairs, Standard Q&A Report Page 1 of 7 Bangladesh: 20200129161854 – Single women with a mental health condition – Access to mental health treatment – Women without family support or male protection
Corruption
Political interference and corruption operate to constrain the rule of law in Bangladesh. While some state institutions continue to work to enforce the fundamental rights of citizens, insufficient funding and a lack of political support hamper their efforts. Other organs of state protection, including the military, police, and lower courts, can be heavily politicised, under-resourced, and subject to corruption. DFAT assesses that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.
Corruption is widespread within Bangladesh Police force. The police force is regarded as the most corrupt branch and it shares a close nexus with the government.
In 2019, 235 complaint cases involving bribery, extortion, and misconduct were filed against 357 members of the police force.
Many innocent people have been arrested and sent to jail due to corruption and impunity of members of law enforcement agencies. Anti-corruption legislation is inadequately enforced, corruption is endemic in the judicial system, police and public services, and prosecutions for corruption are rare. The government has claimed that the people’s confidence and trust in police have improved significantly and that the police has made progress in developing a more ‘people-friendly image’ especially during the COVID-19 pandemic.
However, Transparency International assessed that Bangladesh’s corruption is one of the worst in Asia Pacific, which ranges from bribery in health clinics to misappropriated aid, is pervasive in the procurement of medical supplies and contracts between powerful businesspeople and government officials.
Courts
Courts are compromised by political interference. The law provides for an independent judiciary, but political interference compromise its independence. Separation between the executive and the judiciary has eroded significantly as the government has expanded its control over the lower courts in spite of rules on the separation of the two institutional branches of the state.
In 2017, the Chief Justice of the Supreme Court retired, leaving the country and writing in an autobiography published in September 2018 that he had been forced to retire after threats from Bangladeshi military intelligence because of rulings he had made against the government. The government claimed that allegations of corruption rather than the government’s attempt to amend the constitution which reportedly would weaken the independence of the judiciary had resulted in the judge’s resignation.
In January 2020, an arrest warrant was issued against the former Chief Justice who has sought asylum in Canada on alleged charges of corruption. In March 2020, a district and sessions judge who had passed jail sentence against a former Awami League Member of Parliament and his wife on corruption charges was removed.
Allegations of political pressure on judges are common, as are allegations that unqualified AL loyalists were being appointed to court positions. Corruption and bribes are prevalent throughout the court system. Corruption is endemic, and anticorruption efforts have been weakened by a politicized enforcement.
Human rights observers maintain magistrates, attorneys, and court officials demanded bribes from defendants in many cases, or they ruled based on influence by or loyalty to political patronage networks. Observers claimed judges who made decisions unfavourable to the government risked transfer to other jurisdictions. Delays and backlogs stymie the issuing of justice. Individuals’ ability to access the justice system is compromised by endemic corruption within the courts and severe case backlogs.
At July 2020, 3.7 million cases were pending before the courts significantly delaying the process of administering justice and diverting resources. Pre-trial detention is often lengthy, and many defendants lack counsel. Denial of bail, delays in completing investigation, submission of charge sheets and prosecution are leading contributors to the overuse of pre-trial detention.
Criminal cases against ruling party activists are regularly withdrawn on the grounds of ‘political consideration’, undermining the judicial process and entrenching a culture of impunity.
Women
Violence against women is common. Despite legal prohibitions, rape, sexual harassment and other forms of incidents of gender-based violence against women occur frequently. Victims of violence often do not report to police for fear of shame or embarrassment and also because of a perceived sense of insensitivity, lack of gender awareness, and sexism among the police and law enforcing agencies. A combination of political, sociocultural, and human rights groups said incidents of rape continued to occur due to a culture of impunity.
Over 1,400 cases of rape were reported during 2019.There were reportedly 1,538 rape cases in 2020, of which 919 were girls under the age of 18. Odhikar reported 736 cases of rape from January to June 2021, of which more than half (428) were girls under the age of 18. Female workers in factories have reported abuse and violence, including sexual harassment.
In 2021, Odhikar recorded a total of 1411 women and children who had been victims of rape, of whom 556 were women, 809 girls below the age of 18 while the age of 46 female individuals were unknown. Over 200 women were reportedly murdered by their husband or husband’s family in 2021. Social attitudes oppose violence against women. Public attitudes towards violence against women were demonstrated during nationwide protests in October 2020 following several cases of rape, including a video circulation in the social media of an incident of sexual assault and gang rape.
The country-wide protests have led the government to amend the law allowing for capital punishment in case of rape. A Bangladeshi court has issued the death sentence in a rape case, for the first time to five convicted men. The introduction of the death penalty has not stopped rape cases. In 2019, similar public outcry was seen after a young woman was burned to death following her attempts to lodge a complaint of attempted rape against her teacher. The teacher along with 15 other accomplices received the death penalty for the crime. There are barriers for victims of rape seeking justice. In 2018, the Bangladeshi High Court issued guidelines for handling rape cases, but they are poorly enforced with no accountability.
Women are often reluctant to report violent crimes to the police for a number of social and cultural reasons such as fear of losing their husband, stigma, police inefficiency and corruption, insufficient investigative avenues and fear of police harassment. These factors, among others, have resulted in a small rate of conviction.
Lack of awareness, legal understanding, and witness protection law, compounded by lengthy delays in judicial processes and high costs of legal procedures, create further barriers to the victims of abuse and violence. In October 2020, the High Court directed all law enforcing authorities to stop the use of arbitration or salish (common in rural areas) in the adjudication of rape cases and complete all trial proceedings within six months.
Other forms of violence targeting women are also common. Women experience violence including physical violence (whipping and beating) resulting from enforcement of ‘fatwas’ or edicts by religious leaders for perceived moral transgressions and acid attacks. In a recent national survey, over 60 per cent of males from urban and rural areas justified beating their wife under certain circumstances. Cases of acid attacks have decreased but the laws against such attacks remain poorly implemented.
Gender-based violence against women is compounded by patriarchal, societal, cultural and religious attitudes and gender stereotypes. Young women are three times more likely than men to be neither employed, nor in education, or in training, creating a gender gap as a result.
Discrimination against single or indigenous women or those from a lower socio-economic class or ethnic background (the Dalits), or with disabilities make them particularly vulnerable. A recent survey found that a third of young women who were employed in Bangladesh before the pandemic were out of jobs in January 2021, which would contribute negatively to the economy and women's empowerment in Bangladesh.
The sharp increase in violence against women and girls during 2019 was partly attributed to a culture of impunity and a lack of government commitment. Women also continue to be targeted by people traffickers for prostitution in other countries. Legal redress for victims of sexual assault or domestic violence is atypical. Laws exist prohibiting rape of a female by a male and physical spousal abuse, but the law excludes marital rape if the female is older than 13.
Conviction of rape maybe punished by life imprisonment or the death penalty. Despite such laws, Bangladeshi women report living in fear of sexual assault with little recourse for justice. Failures in the response, protection and support services adversely affect the ability of victims to access the justice system. Around 80 per cent of cases involving violence against women take more than two years to reach the court once cases have been filed with police. The courts ruled in favour of the victims in only three per cent of such cases. The remainder either have their cases dismissed or do not receive court hearing.
A 2013 Immigration and Refugee Board of Canada research response quotes a Professor of Anthropology at BRAC University in Dhaka who noted the difficulties a single woman would have in relocating within Bangladesh: As in other arenas, single women’s relocation to other parts of the country is much more difficult. In the absence of state services, people rely on kinship ties and an active system of social support from the local community to get by. A newly divorced or single woman relocating will have none of the advantages of social ties but all of the disadvantages of being without a male protector. 21 A 2017 Fact-Finding Mission report by the UK Home Office states that ‘[s]everal sources noted that it was very difficult for a single woman to move around, live alone or get a job’ but ‘middle class single women may be able to gain employment.’22 The report quotes a representative from human rights NGO Ain o Salish Kendra noting the difficulties faced by single women: There are big problems with the social acceptance of single women, even for educated women who are working. There are also financial constraints. To live without male support is almost impossible. Bangladesh is a very family-orientated society. Even educated women are afraid to leave their families. There are NGO-run livelihood programmes for older and poorer single women. It is difficult for single women to rent a place to live in Dhaka or anywhere since society does not accept this and the state fails to assure security. It turns out to be a great obstacle towards single potential women’s empowerment. Single childless women may be able to find work in someone else’s home (as a domestic worker), but a woman with children would find such work difficult to obtain. Single woman living alone are often called Bhabi which means ‘sister-in-law’. It is for their protection and also suggests they are unfamiliar with or unaccustomed to being with a single woman.
CLAIMS AND EVIDENCE
The applicant has provided me with a number of statutory declarations signed by herself, her mother and sister, and others as well as a number of written submissions made on her behalf by her authorised representative.
The applicant also provided several hundred pages of material to the department and the Tribunal to support her claims, notably copies of newspaper articles and documentation about her father’s death, police and post-mortem reports; high court and other court papers documenting the progress of the applicant’s family’s pursuit of the accused through the judicial process, a copy of the applicant’s sister’s refugee application to the [Country 1] authorities (an application that was successful); letters and other material detailing the efforts of her mother to pursue legal redress for the crime committed against her husband (including a transcript of her mother’s [news] interview about the murder of the applicant’s father); material documenting the infiltration of Bangladeshi media by the Awami League and its supporters; documents about the applicant’s sister and material in relation to the applicant’s own health as well as country reports and information from the Department of Foreign Affairs and Trade and the Department of Home Affairs. I accept that these documents are genuine and reliable and do not propose to enumerate each of them in detail but will refer to them where relevant in the consideration of claims and evidence below.

The applicant has provided consistent, compelling and credible evidence about her experiences in the aftermath of her father’s death throughout. On balance, I accept the following aspects of her account of those events for the reasons below.
The applicant arrived in Australia on a student visa in January 2016 when she was just [Age 1] years old. She made an application for a protection visa in November 2016. I have considered the delays associated with both her departure from Bangladesh and lodging a protection visa application some 10 months after her arrival. The applicant was only [Age 2] years old when her father was murdered. She and her family fled Dhaka some 12 months after the incident because of persistent harassment and fears for their safety. The applicant’s sister fled to [Country 2] in [Year 2]. The applicant remained living with her mother and [Relative 1] until she was old enough to apply for and come to Australia on a student visa at age [Age 1].
The applicant’s delays in applying for a protection visa after her arrival can also be attributed to her youth along with the trauma she suffered as a result of her father’s death, the precarious safety of the family and confusion about her rights in Australia. The applicant has provided medical information and I accept that she has ongoing mental health issues. I accept that these factors led to a delay in her applications and that these delays are reasonable and do not reflect negatively upon the applicant’s credibility. Because of the applicant’s age and circumstances both at the time or her father’s murder, the time of application and now, I have afforded her the benefit of the doubt in relation to minor inconsistencies contained in her account and her inability to recall the details of what were, for her, traumatic events.
The applicant’s father was murdered in [Year 1]. She was not at home, but her sister and mother were. Newspaper reports at the time identified a number of perpetrators who were subsequently arrested and bailed, and others absconded and are still at large. The matter remains ongoing before the courts, some [Number] years later, and has not been finalised.
Contemporaneous newspaper reports indicate that the applicant’s father was murdered because of an unpaid extortion attempt. During the Tribunal hearing the applicant claimed that the perpetrators had told her father that they would rape and kill her and her sister if her father did not pay them money. She said that her father had reported this to the police and the Mayor’s office several times but they did not help him. The applicant has consistently claimed that some of the perpetrators had connections with the Awami League and has provided evidence to indicate that at least one of the perpetrator’s relatives was a member of the Awami League.
The brother of one of the perpetrators of the murder of the applicant’s father, [Mr B], is the [Official position] of the [Political organisation] which is [affiliated with] the Awami League. His name is [Mr C]. The applicant contends that [Mr C] wields political power and has connections and influence to protect his brother from prosecution for the murder of the applicant’s father. She contends that this is the reason that the case, even after [Number] years has not been brought to a close. The applicant further contends that she will be targeted by [Mr C] and the Awami League if she returns to Bangladesh and suffer significant harm because she and her family will (and have) persisted in trying to bring the perpetrators to justice.
I accept that the motivation for the murder of the applicant’s father is not clear and reports in the media at the time do not offer any certainty except to say that extortion was involved. One of the perpetrators has a brother in the upper echelons of the Awami League. The applicant’s father was a successful businessman. It does not seem farfetched to accept that he could have been targeted for extortion and have his daughters threatened with rape and murder by unscrupulous individuals associated with the ruling party.
The newspaper articles at that time report that several police involved in the case were accused of complicity to de-rail the investigation by circulating false information about the incident and the applicant’s mother and taking bribes. Along with charges of murder, the perpetrators have also been charged under the explosive’s substance Act. A number of unexploded devices were found to have been left at the home of the applicant’s father.
Reports in the media in late [Year 2] also indicate that the applicant’s mother had continued to receive threats over the phone and visits from associates of the perpetrators to force her to abandon her pursuit of them through the courts. The applicant’s mother had lodged several complaints and made written submissions to the State Minister and Police Commissioner seeking a fast trial. The applicant’s mother continued to write to the State Minister and make applications to the police and the court over several years to register the threats against her and her family and to demand a fast trial.
News reports [in or on News sources 1 and 2] also continued to publish reports on the murder of the applicant’s father for several years.
The applicant’s mother recently appeared [in or on News source 3] repeating her claims of police corruption and pursuing justice for the murder of her husband. The applicant’s mother was hospitalised with COVID for around [Number] months prior to her interview with [News source 3] and remains unwell. The applicant told me that she and her sister had been sending their mother money to help pay for all the related medical and hospital expenses.
I put to the applicant concerns I had in relation to the news reports and her mother’s interview with [News source 3], in particular, that there had been no mention that the perpetrators were members of, or had an association with, the Awami League. The applicant explained that most media outlets in Bangladesh had links with the Awami party and the government. She has provided several independently sourced articles to support this assertion and I have also sourced corroborating evidence from DFAT in relation to the censorship of Bangladeshi media. The applicant claims, and the Tribunal accepts, that it would have been very dangerous for her mother to come out and accuse the Awami League members of murder [in or on national media].
The applicant contends that as a result of the continued threats the family were receiving whilst living in Dhaka from the accused and their associates, they relocated from their home to live with the applicant’s [Relative 1] in [Location 1], around [Distance] kilometres away in early [Year 2]. Their home in Dhaka remains abandoned to this day. The applicant’s sister, [Ms D], married [Mr E] and moved away to [Location 2] in [Year 2]. The applicant and her mother also moved around before her mother returned to [Location 3] to live with her [relative] when the applicant’s [Relative 2], the [spouse] of [Relative 1] died.
[Ms D]’s husband went missing on [Date 1, Year 2]. The applicant and her sister contend that [Mr E] was killed by Awami League members as a threat to stop them pursuing the murderers of their father. The applicant’s sister subsequently fled to [Country 2] on [Date 2, Year 2] and travelled to [Country 1] in [Year 3] where she applied for, and received, refugee status. The applicant has provided me with a copy of [Ms D]’s application form. Her claims are entirely consistent with the claims of the applicant except that [Ms D] was a direct witness to the murder of their father. I acknowledge that this is a significant difference but nonetheless place significant weight on this information as corroboration of the applicant’s claims.
I put to the applicant that given her recent marriage, she may be safe if she returned to Bangladesh, notwithstanding the death of her uncle, the applicant strongly disagreed. She stated that it would be impossible to return with or without her husband. She told me that as a young woman she would be targeted for rape and sexual assault. She claimed that it would not be safe for her under any circumstances to return to live anywhere in Bangladesh. She told me that the murderers of her father remained at large and would be able to locate her. She told me that those people had connections with powerful people who had already influenced the case against them. She said that the case has been delayed for over [Number] years and this should indicate that there is political influence being exerted to prevent people associated with the Awami League from being brought to justice.
She said that she and her mother would continue to fight for justice for her father and she would be killed or raped by these people. She said that there is nowhere in Bangladesh that she would be safe and that she would not receive any protection from the authorities as they were involved in the injustice.
Assessment of claims and evidence
I accept that the applicant’s father was murdered and that the court proceedings of those responsible have not yet concluded. I accept that a number of those perpetrators involved in the murder of the applicant’s husband remain at large, having either been bailed pending finalisation of the case, escaped from custody or absconded from bail.
I accept that there is some evidence to suggest that some of the perpetrators of the murder of the applicant’s father have links to the Awami League. Whilst there is still a question in my mind as to whether the murder itself was politically motivated, based on the evidence before me, I cannot rule out the applicant’s (and her mother and sister’s) proposition that the murder was motivated for political reasons. I am satisfied however that the subsequent denial of justice in bringing the accused to account, is politically motivated and corrupted.
I accept that the applicant and her family had to flee their home in Dhaka because of persistent harassment by the perpetrators of the crime and/or their associates and hold a genuine and well-founded fear for their safety. I accept that the applicant’s sister received refugee status in [Country 1] based on her account of the murder of her father and the threats of significant harm she and the applicant received.
I also accept that none of the accused are currently in police custody and remain in the community and that the matter remains ongoing before the courts. I accept that the applicant has a genuine fear of reprisal from these individuals if she returns to Bangladesh involving significant harm.
I accept that there is consistent evidence suggesting that there has been some level of police corruption and political interference which has delayed the proper prosecution of this case over the past decade.
I accept that the applicant’s mother now lives in [Location 3] with [Relative 1. [Relative 2] has died and [the mother and Relative 1] live alone. I accept that the applicant’s mother has been hospitalised with COVID-19 and remains unwell. I accept that the applicant’s mother continues to fight for justice on behalf of her murdered husband, including by appearing [in or on a news interview] in [Year 4].
I accept that the applicant has a subjectively held, ongoing and profound fear of suffering significant harm from the accused should she be required to return to Bangladesh.
Does the applicant have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion?
The applicant fears that if she returns to Bangladesh she will be persecuted or face significant harm because she and her family continue to seek justice for the murder of her father and because she is a young woman.
I am satisfied that the applicant is a member of a particular social group for the purposes of s.5J(4) of the Act, in that she is a victim of violence pursuing justice for murder and a young female in Bangladesh. I accept that these are the essential and significant reasons for the feared persecution.
The applicant fears that she will suffer significant harm or possibly killed and/or raped, both as a result of her father’s murder and ongoing court case and because she is a young woman. I am satisfied that the feared persecution involves serious harm to the applicant as required under s.5J(5) of the Migration Act.
I am satisfied, by reason of the above, that the persecution feared is not random or unintentional but involves systematic and discriminatory conduct.
I have carefully considered whether the applicant’s fear is well founded. A fear is well-founded if there is a “real chance” that the applicant may be persecuted for one or more of the reasons above. I am satisfied that the applicant has a profound subjective fear of persecution should she return to Bangladesh.
According to Justice McHugh, MIEA v Guo (1997) 191 CLR 559 at 572.
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.
I note that there have been no apparent threats or harm to the applicant’s mother, despite her ongoing pursuit of the perpetrators of the murder of her husband. I also note that the applicant’s mother is not the only witness to the crime, though I accept she was one of only a few direct witnesses. The case against the perpetrators does not rely solely upon her evidence, however I do accept that it would be vital to the prosecution. I also accept that the applicant and her sister were targeted by the perpetrators for rape and/or murder and have escaped such a fate by fleeing the country. I accept that the applicant’s return to Bangladesh and the progress of the court proceedings may re-ignite an actual intention by the perpetrators to follow through on their threats. That is certainly not a far-fetched risk in my view.
Furthermore, in addition to being a target for retaliation from the accused, the applicant’s age and gender increase her vulnerability to harm and this is supported by the country information above.
I note that the applicant could return to live with her mother and aunt however I accept that this would be a precarious situation for her in the context of her circumstances for her to return to live anywhere in Bangladesh. In 2010 Unicef noted that “in a strictly patriarchal society like Bangladesh, being without a male protector and provider can render women vulnerable to abuse and isolation from the community”.
I also accept that being a young female does not on its own establish a need for protection. However, in addition to the other risks to her safety associated with the murder of her father and the links to the Awami league through at least one of the perpetrators, I am satisfied that there is a real chance of the applicant suffering the relevant harm should she return to Bangladesh now or in the reasonably foreseeable future and that her fear of persecution is well founded.
I have considered whether the applicant could receive state protection should she return to Bangladesh. However the applicant and her family are fighting a [Number] year old murder case that has been marred by apparent corruption and political interference. The country information above confirms a high level of corruption in the courts and incompetence and corruption in the machinery of law and order. I am not satisfied that given the particular and cumulative circumstances of the applicant that she would be offered effective state protection should she return to Bangladesh either now or in the reasonably foreseeable future.
The applicant is not a national of a third country and does not have the right of residence in a third country. There is no information before me to suggest that the applicant can relocate in another country.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Ann Duffield
Senior 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.
…

[2022] AATA 3260

26 July 2022

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