1928714 (Refugee)

1928714 (Refugee) [2024] AATA 4311 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Anne Frances O’Donoghue
CASE NUMBERS: 1928714
1928716

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Frances Simmons
DATE:24 September 2024.
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 September 2024 at 4:51pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion and membership of particular social group – Christian and separated/divorced mother – marriage to Muslim – family violence, pressure to convert to Islam and husband’s political connections – no evidence of interactions with former husband, continuing threats to applicants or harm to family members, or of outcome of divorce proceedings – adult son’s conversion in Australia – undetailed evidence of current church activities or plans if returned – returned failed asylum seekers – country information – freedom to worship but many keep low profile – separate applications – consent to decisions without hearing and request for referral for ministerial consideration – length of residence, study, work and family ties – request not granted, but possibility of applying directly – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is a joint decision record for an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Bangladesh, applied for the visas on 2 May 2017. The first named applicant is a [Age]-year-old woman who was born in [Year] in Dhaka in Bangladesh. The second named applicant is her [Age]-year-old son who was born in [Year] in Dhaka in Bangladesh. The delegate refused to grant the visa on the basis that the delegate was not satisfied that either applicant was owed protection obligations by Australia.
On 27 June 2024 the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a combined hearing.
On 23 July 2024, the applicants acquired representation in relation to the review.
On 9 August 2024 the applicants advised the Tribunal that they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
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). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[1]
[1] DFAT Country Information Report on Bangladesh, 30 November 2022.
The Tribunal has considered the DFAT country information report on Bangladesh published on 30 November 2022. The Tribunal acknowledges that since the publication of this report there has been political upheaval in Bangladesh. In August 2024 Sheikh Hasina resigned as prime minister and fled to neighbouring India after weeks of violent protests. Following the resignation of Sheikh Hasina and the collapse of her Awami League government after 15 years in power an interim government, led by Nobel Peace laureate Muhammad Yunus, was sworn in on 7 August 2024 with the stated aim of holding elections.[2]
[2] ‘Restoring law and order in Bangladesh a priority, says caretaker government’, Ruma Paul and Devjyot Ghoshal, Reuters, 09 August 2024, 20240812145608.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues that arise in this case are whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
[In] May 2013 the first named applicant entered Australia on a student visa (Subclass 573). [In] April 2014 the second named applicant entered Australia holding a student visa (Subclass 573). On 12 May 2016 the applicants’ applications for student visas were refused. On 3 May 2017 the decisions to refuse to grant the applicants student visas were affirmed by the Administrative Appeals Tribunal (differently constituted).
On 2 May 2017 the applicants applied for a protection visa. The applicants were represented before the Department. The Tribunal has carefully considered the information on the Departmental file ([Reference]) and the Tribunal files in case no. 1928714 and case no. 1928716. This material is voluminous and where relevant is referred to below.
Evidence before the Department
Protection visa claims made by the first named applicant
The first named applicant is a [Age]-year-old woman who was born in [Year] in Dhaka in Bangladesh. According to a passport issued in her name by the People’s Republic of Bangladesh, she was born in [Year] in Dhaka in Bangladesh. The passport records the names of her parents and her spouse and her permanent address in Dhaka. At the time she made her protection visa application, her parents both lived in Dhaka in Bangladesh (her father subsequently died in 2018). According to her application, she has two brothers: one brother lives in Australia and the other lives in Dhaka, Bangladesh.
In the statement of claims dated 2 May 2017 that accompanied her protection visa application, the first named applicant claimed she would face harm in Bangladesh because she is a single mother and a devoted Catholic Christian who actively follows her religion. She also claimed she would be harmed because she is the mother of a child who is taking steps to change their religion, and she would be perceived as having encouraged her son to change his religion.
The first named applicant stated she was from a strict Catholic family. Her father was a regional director of [Organisation] before his retirement. She married her neighbour from a Muslim family in 1997. The marriage occurred against the wishes of her family. The second named applicant was born [in] [Year]. He is her only child. After they married her husband became abusive, pressuring her to get money from her parents and to convert to Islam. He took their son to the mosque from a young age. The first named applicant took her son to church but told him he needed to explore different religions before making up his own mind about what faith he wanted to adopt when he reached 18.
The first named applicant stated she separated from her husband in 2008. She claimed she experienced family violence during her marriage and following their separation her husband continued to harass her made it difficult for her to see her son. She lodged police complaints about this, but the police would not help her because of her husband’s connection with the Awami League. In 2013, she travelled to Australia to study. Her son struggled with her absence and the pressure applied to him by his father to follow Islam. Her husband did not oppose the plan for the second named applicant to travel to Australia to join her.
The first named applicant stated now she is in Australia she is taking steps to obtain a divorce. She fears she cannot obtain adequate state protection in Bangladesh because her husband ‘has links and influence with the authorities due to his connection with the Awami League’. She also fears that if she moves to another part of Bangladesh, she will face harm ‘because Islamic extremists have influence and networks in Bangladesh and her husband has links with the Awami League’. In addition, she is a single mother and would face practical difficulties relocating to other parts of Bangladesh.
The first named applicant claims that after her son came to Australia, he started attending churches with her and began showing an interest in Christianity. She told him to learn about other religions including Islam and Hinduism as she did not want him to blindly follow a religion. After her son turned 18, he told her he had decided to become a Christian and enrolled in Bible classes in order to take formal steps before being baptised. She fears that she and her son will face harm in Bangladesh.
Protection visa claims made by the second named applicant
The second named applicant claims that, since arriving in Australia, he has converted to Christianity. In the written statement that accompanied his protection visa application, he claimed he would face harm if he returned to Bangladesh because he was ‘following Christianity’ and did not follow his father’s religion of Islam and he would be considered an apostate for leaving Islam. He claimed that he would be considered an infidel and his father would force him to follow Islam and, if he failed to follow Islam, his father, his family or relatives or Islamic extremists would target and kill him for abandoning Islam.
Interviews with the delegate
The applicants were interviewed separately by the delegate on 3 September 2019 in the presence of their migration agent and with the assistance of a Bengali language interpreter. The delegate’s decision refers to the information the applicants provided in the interviews. Audio records of the interviews are held on the Departmental file. The delegate’s decision notes that the applicants consented to the disclosure of their information with each other.
Documentation provided to the Department
The applicants’ representative provided submissions to the Department in support of the applicants’ claims to be owed protection. The submissions referred to a range of country information about the situation of Christians in Bangladesh as well as Tribunal decisions about the situation of Christian converts. The delegate was asked to consider a Tribunal decision in which the Tribunal drew a distinction between ‘the situation of persons born into Christianity in Bangladesh and former Muslims who have converted to Christianity in a predominantly Muslim country where fundamentalist opinions are on the rise’.[3]
[3] AAT case no. 1709204 (Member Flood).
The applicants submitted various documents to the Department, including the death certificate of the first named applicant’s father which indicates he died in 2018; a copy of a General Diary entry from November 2010; a letter from a lawyer representing the first named applicant in divorce proceedings dated [August] 2019; a discharge referral dated 25 January 2019 from [Local Health District] relating to the first named applicant; and a letter from [Parish] in [Suburb] dated 1 September 2019; a letter from [Rev A] of [Church 1] in Dhaka dated 30 August 2019, and a letter from [Fr. B], Parish Priest, of [Church 2] dated 27 August 2019; and a letter from [named Association] dated 01 September 2019.
The delegate’s decision
On 19 September 2019 the delegate found the applicants were not owed protection obligations by Australia and refused to grant the protection visas.
The delegate accepted the applicants were mother and son. The delegate accepted that the first named applicant is a member of the Dhaka Roman Catholic community. The delegate accepted she married a Muslim man in 1997, that the marriage was abusive, and that she separated from her husband in 2008 and filed for divorce in 2019. The delegate accepted that on return to Bangladesh she will be a divorced mother of her (adult) child. The delegate accepted that the first named applicant’s husband is affiliated with the Awami League. The delegate found family support was available to the first named applicant in Dhaka and did not accept she would face serious harm or significant harm for any of the reasons claimed.
The delegate accepted that the second named applicant was the child of a Christian mother and a Muslim father. The delegate had concerns about the reliability of the letters purportedly written by priests known to the applicants’ family. The delegate was concerned that the letters claimed that the husband of the first named applicant threatened to kill her parents, but this claim was not raised by the first named applicant in her written claims. The delegate was also concerned by irregularities in the spelling in the names of the priests who wrote the letters as well as the fact that the letter from [Church 2], which was dated August 2019, referred to the father of the first named applicant in the present tense when, according to the evidence of the first named applicant, he died in 2018.
The delegate did not accept that the first named applicant’s husband ever made threats against her parents or any of her relatives in Dhaka. The delegate found that there no evidence that the first named applicant’s husband was seeking to oppose to divorce that she had initiated. The delegate did not accept that there was a real chance that the first named applicant would face serious harm or significant harm from her estranged husband or his family.
The delegate accepted that second named applicant has an Islamic name and noted that in Bangladesh children are commonly expected to follow the religion of their father. The delegate found that the second named applicant maintained significant contact with his maternal relatives and lived with his grandparents for a couple of years prior to leaving Bangladesh. The delegate was also of the view that the second named applicant would have the support of his maternal relatives if he wanted to convert to Christianity. The delegate did not accept that there was a real chance that the second named applicant would face harm at the hands of his father, paternal relatives or extremists because he would be perceived as a ‘Christian convert’ or an apostate.
Evidence before the Tribunal
The applicants each made an application for review of the delegate’s decision. The second named applicant requested that the applications proceed as separate review applications, and 2 separate case numbers were created: case no. 1928716 and case no. 1928714. The applicants both provided the Tribunal with a copy of the delegate’s decision.
In October 2019, the following documents were submitted to the Tribunal in case no. 1928714 and case no. 1928716:
(a)A statement from [named Association] dated 1 September 2019;
(b)An undated statement from the first named applicant in which she states that she will be at risk from her former husband because her father is no longer alive to protect her submitted to Tribunal on 10 October 2019;
(c)An undated statement from the second named applicant submitted to the Tribunal on 11 October 2019;
(d)A statement from the President of [named Association] [Mr C] dated 7 October 2019;
(e)A statement from a Parish Priest at [Parish] in [Suburb] dated 1 September 2019 which states the second named applicant has made formal inquiries about being baptised and will begin a formal process that will conclude in Easter 2020;
(f)A statement by the first named applicant’s neighbour dated October 2019;
(g)A statement by the mother of the first named applicant dated 9 October 2019 which states her daughter is still at risk from her former husband;
(h)A statement of village chairman [Mr D] in support of the applicants’ claims;
(i)A statement from Parish Priest [Fr B] dated 20 April 2017;
(j)A statement of Parish Priest [Rev A] on 9 April 2017;
(k)A statement from the applicants’ parents dated 2017;
(l)A statement from the lawyer representing the first named applicant in divorce proceedings dated 28 August 2019;
(m)A statement by [Ms E] dated 7 October 2019; and
(n)A General Diary form recording a complaint made by the first named applicant at Pallabi Police Station in Dhaka in 2010.
Some of the documents listed above were not before the delegate. Other documents had previously been submitted to the Department. While the Departmental file contains letters purportedly written by Parish Priest [Fr B] and Parish Priest [Rev A] in August 2019, the letters submitted to the Tribunal from these Parish Priests are dated April 2017 (see above paragraph 32 (i) and (j)).
The Tribunal considered all the information before it, and formed the preliminary view that it was unable to make a favourable decision on that information alone. Accordingly, on 27 June 2024 the Tribunal invited the applicants to a combined hearing on 23 September 2024. The hearing invitation sought the consent of the applicants to proceed with a combined hearing. The hearing invitation noted that if the applicants declined to attend a combined hearing, a separate hearing would be arranged for the second named applicant.

On 23 July 2024 the applicants acquired legal representation. On 9 August 2024, the applicants requested, via their representative, a decision on the papers.
On 12 August 2024 the Tribunal wrote to the applicants and acknowledged that they had requested a decision on the paper and that the matter be referred to the Minister for ministerial intervention. The Tribunal provided the applicants with 7 days to make submissions about why the Tribunal should refer the matter to the Minister.
On 19 August 2024 the applicants made further submissions and provided documentation in support of their request that the matter be referred to the Minister. This documentation included: a copy of the second named applicant’s baptism certificate dated 22 November 2020; photographs of the applicants in a church setting; letters from former and current employers of the first named applicant; copies of various educational certificates obtained by the applicants; a copy of the second named applicant’s Higher School Certificate award; a letter stating the second named applicant is employed as [an occupation].
Where relevant the evidence before the Tribunal is discussed further below in the findings and reasons.
FINDINGS AND REASONS
Country of reference
The applicants both claim to be citizens of Bangladesh. The Departmental file contains copies of the biodata pages of the Bangladeshi passports of the applicants. Based on the evidence before it, the Tribunal is satisfied the applicants are citizens of Bangladesh, and that Bangladesh is the applicants’ ‘receiving country’ for the purposes of the refugee criterion and complementary protection criterion.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
In assessing the applicant’s claims, the Tribunal has considered the information provided by both applicants to the Department and to the Tribunal. Based on the evidence before it, the Tribunal makes the following findings of fact:
(a) The first named applicant is a practising Roman Catholic who was born in Dhaka in Bangladesh in [Year].
(b) The first named applicant married a Muslim man (the husband) in 1997 against the wishes of her family.
(c)   The first named applicant and her husband had one child, the second named applicant. The second named applicant was born in [Year].
(d) The first named applicant separated from her husband in 2008. After she separated from her husband she lived with her parents in Gulshan, a district in Dhaka.
(e) The first named applicant had contact with her husband after their separation because her son, the second named applicant, lived with her husband.
(f)    From around 2011 the second named applicant mostly lived with the first named applicant and her parents.
(g) The first named applicant completed a Bachelor of [Subject 1] in 2003 and a Master of [Subject 2] in 2010.
(h) In 2013 the first named applicant travelled to Australia holding a student visa.
(i)    In 2014 the second named applicant travelled to Australia with the permission of his father.
(j)    The second named applicant completed his high school education in Australia in 2015. He enrolled in, but did not complete, a Certificate IV in [Subject 3] at [College].
(k)   While in Australia, the second named applicant expressed an interest in Christianity. After he turned 18, he enrolled in Bible classes.
(l)    In 2018, the first named applicant commenced proceedings to obtain a divorce from her husband.
(m) In November 2020 the second named applicant was baptised.
(n) The second named applicant is currently employed as [an occupation].
The Tribunal has considered the documentation the applicants submitted to the Department in support of their claims.
The Tribunal notes that the invitation to a combined hearing on 23 September 2024 put the applicants on notice that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. In electing not to attend a hearing before the Tribunal, the applicants have chosen not to avail themselves of the opportunity to provide more detailed oral evidence about their claims for protection.
The Tribunal has considered the material on the Departmental file [Reference] as well as the material on Tribunal files 1928714 and 1928716. For the reasons that follow the Tribunal is not satisfied, based on the evidence before it, that there is a real chance that any difficulties that the applicants may encounter if they return to Bangladesh will rise to the level of serious harm or significant harm. The Tribunal’s reasons are set out below.
Assessment of claims made by the first named applicant
The first named applicant claims that, on return to Bangladesh, she will face harm for reasons of her Christian faith and as a single or divorced mother. The Tribunal accepts that, if the first named applicant returns to Bangladesh, she will be a single or divorced mother of Christian faith. The Tribunal accepts that the first named applicant is a woman of Christian faith who married a Muslim man in 1997. The Tribunal accepts the first named applicant separated from her husband in 2008. The country information indicates that domestic violence is widespread and that most women who experience domestic violence do not report this violence to the authorities. [5] Police services are inadequate to protect victims of violence and cultural norms prevent women from seeking help or safety even if it were available.[6] In this context, the Tribunal accepts that the applicant and her son experienced family violence at the hands of her husband before their separation in 2008. The Tribunal is also prepared to accept that, in the aftermath of her separation from her husband in 2008, the first named applicant was concerned that her husband was abusive towards her son and that she made a police report about this matter in 2010. The first named applicant told the delegate that after 2011 her son spent most of his time with her.[7] The second named applicant also told the delegate that after his mother left Bangladesh in 2013, he mostly lived with his maternal grandparents during the week and saw his father on weekends.[8]
[5] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]
[6] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]; see generally on the situation of women [3.112]-[3.120].
[7] Delegate’s decision, p.7
[8] Delegate’s decision, p. 8
The Tribunal observes that almost sixteen years have passed since the applicant separated from her husband in 2008 and their son is now a [Age]-year-old man. On the evidence before it, the Tribunal is not satisfied that in the 2 years immediately before she travelled to Australia in 2013 the applicant or her son were threatened or otherwise harmed by her former husband. It is not in dispute that her former husband gave permission for her son to travel to Australia to live with her in 2014. A decade has passed since the applicant’s son arrived in Australia and he is now a [Age]-year-old adult. The Tribunal accepts that the first named applicant initiated divorce proceedings in 2019. No further information has been provided to the Tribunal about the outcome of the divorce proceedings. On the evidence before it, the Tribunal does not accept that the applicant’s former husband objected the divorce proceedings.
On the evidence before it, the Tribunal is not satisfied that the applicant’s former husband has threatened either of the applicants while they have been resident in Australia. The Tribunal notes that the delegate found that ‘there is no evidence that the applicant’s husband] or his family members have actually threatened or harmed any of her numerous family members who continue to reside in Dhaka’. The delegate was also concerned about the reliability of the letters purportedly written by two priests known to the applicants’ family in 2019. When the applicants applied for review of the delegate’s decision they submitted letters, purportedly written by same priests. However, while the letters submitted to the Department were dated 2019, the letters submitted to the Tribunal were dated 2017.[9] The Tribunal is not satisfied that the applicants have adequately addressed the delegate’s concerns about the letters from the parish priests or adequately explained why the letters from the parish priests submitted to the Tribunal are dated 2017.
[9] See paragraph 32 (i)-(j).
On the evidence before it, the Tribunal is not satisfied that the applicant’s former husband or his family members have made any threats against the applicants or their family members since they arrived in Australia. The Tribunal does not accept the claims, made in the letters from the parish priests but not in the written statement that accompanied the first named applicant’s protection visa application, that her former husband threatened to kill the parents of the first named applicants. On the evidence before it, the Tribunal does not accept that the applicant’s former husband or his family members have threatened to kill or otherwise harm the applicants’ extended family members in Dhaka. Nor, on the limited evidence before it, is the Tribunal satisfied that the applicant’s former husband objected when she sought a divorce in 2019. In reaching this conclusion, the Tribunal has considered the various support letters provided to the Department and the Tribunal, including from parish priests and family members. The Tribunal notes that while the applicants have previously provided support letters from family members in Dhaka the most recent correspondence is from 2019 and the applicants declined the invitation to provide more detailed oral evidence and the opportunity to ask the Tribunal to take oral evidence from witnesses. Having regard to country information about the prevalence of fraudulent documentation in Bangladesh, the apparent irregularities in the letters from the parish priests, the Tribunal finds the various support letters submitted by the applicants lack probative value and can be given little weight.
Looking forward, the evidence before the Tribunal is not sufficiently detailed to satisfy the Tribunal that there is a real chance that the first named applicant will face serious harm or significant harm from her former husband if she returns to Bangladesh now or in the reasonably foreseeable future for any of the reasons claimed. In making this finding, the Tribunal accepts that the applicant sought a divorce from her husband in 2019 and that she has experienced family violence in the past. While the applicant has a child with her former husband, that child is now an adult and has been resident in Australia since 2014. The applicant has not provided the Tribunal with any further details about the divorce proceedings or her interactions, if any, with her former husband since 2019. There is a lack of evidence before the Tribunal about whether the first named or second named applicant have had any communications with the first named applicant’s former husband since 2019. Given the passage of time and, on the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm or significant harm from her former husband, his family or his associates if she returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal does not accept that there is a real chance that the first named applicant will face serious harm or significant harm from her former husband or his family members for any reason, including because of her religion or because her son has converted or is perceived to have converted to Christianity. As noted above, the Tribunal accepts that the applicant is a practising Roman Catholic. DFAT assesses that Christians, who are a religious minority in a predominantly Muslim country, mostly worship freely but many keep a low profile to avoid violence.[10] According to DFAT, Christians’ experience of discrimination depends on individual circumstances. The same DFAT report assesses that Christians face a moderate risk of societal violence in the form of localised incidents and the possibility of mob violence. DFAT assesses the risk is higher for Muslims who convert to Christianity (or any other religion) in the context of a lone conversion without the support of their community or family, but the risk would then depend on individual circumstances.[11]
[10] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.59]–[3.60]; see generally on the situation of Christians [3.54]-[3.60]
[11] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.59]–[3.60].
The Tribunal has considered this country information in the context of the evidence about the first named applicant’s circumstances in Bangladesh. The Tribunal accepts that the applicant is a practising Roman Catholic from a prominent Catholic family in Dhaka. The Tribunal also accepts that, while in Australia, she has attended church with her son and in 2020 her son was baptised. In the request for a referral to the Minister, reference is made to recent events in Bangladesh, but no information is provided about the impact of the resignation of Sheikh Hasina on the situation of Christians in Dhaka, the applicant’s personal circumstances, or the power of her former husband who, as noted above, the applicants’ claim ‘has links and influence with authorities due to his connection with the Awami League’.
The evidence before the Tribunal is not sufficiently detailed to satisfy the Tribunal that the applicant’s former husband will be motivated to harm her because of her son’s actual or perceived conversion to Christianity or because she is a practising Catholic or for any other reason. The evidence before the Tribunal does not indicate that any of the applicant’s extended family members have had difficulties living in Dhaka because they are practising Roman Catholic. The evidence before the Tribunal indicates that in the years immediately before she left Bangladesh and travelled to Australia, the applicant was able to work and study in Bangladesh and also to practice her Catholic faith and that in Dhaka she has the support of her family and the religious community of which they are a part. On the evidence before it, the Tribunal is not satisfied that there is real chance that the first named applicant will face serious harm or significant harm because she is a practising Catholic. The Tribunal is not satisfied, based on the evidence before it, that the first named applicant will face serious harm or significant harm in Bangladesh from her former husband, his family members, or from religious extremists or from any other individuals or groups.
The Tribunal has further considered whether there is a real chance the first named applicant will face serious harm or significant harm because of her membership of a particular social group of divorced/separated women or single woman in Bangladesh. According to DFAT, most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. [12] Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community.[13] DFAT reports that single women are likely to encounter social and economic difficulties and a woman’s capacity to be a head of the household depends on her capacity to support herself financially. [14]According to DFAT’s sources, women who are heads of households would not face discrimination in employment or health care, for example, but securing sufficient work and childcare would nonetheless be difficult.[15]
[12] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]
[13] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]
[14] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]
[15] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.120]
In the present case the evidence before the Tribunal indicates that, following her separation from her husband in 2008, the first named applicant worked and studied in Bangladesh before travelling to Australia in 2013. After she separated from her husband in 2008, she lived with her parents in the family home in Dhaka until 2013 when she travelled to Australia. While the father of the first named applicant died in 2018, she told the delegate that her mother and older brother continue to live in the family home in Dhaka in Bangladesh. She also told the delegate that she had [paternal uncles] and one paternal aunt in Bangladesh, as well as [maternal uncles] and [maternal aunts], along with numerous cousins. Her son is now a [Age]-year-old adult, who has found employment in Australia. Both applicants have worked and studied in Australia and, according to the documentation provided in support of their request for ministerial intervention, are currently employed. The Tribunal accepts that the first named applicant would be returning to Bangladesh as a separated or divorced woman and that she is a practising Catholic. However, having regard to the available evidence about the applicant’s individual circumstances, the Tribunal is not satisfied that the applicant will encounter social or economic difficulties that would rise to level of serious harm or significant harm.
Overall, the evidence before the Tribunal about the first named applicant’s claims and circumstances lacks sufficient detail to satisfy the Tribunal that if she returns to Bangladesh now or in the reasonably foreseeable future there is a real chance that she will face serious harm or significant harm for any of the reasons claimed. As noted above, it is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. After the Tribunal invited the applicants to a hearing, the applicants acquired legal representation. The invitation to a hearing put the applicants on notice that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. On the evidence before it, the Tribunal is not satisfied that there is a real chance that she will face serious harm or significant harm from her ex-husband, his family or his associates if she returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal has considered what it has accepted about the applicant’s claims individually and cumulatively. While the Tribunal accepts that the first named applicant is a single Christian woman who separated from her husband in 2008 after experiencing family violence, the information before the Tribunal lacks details about her current circumstances and the support available to her from her extended family in Bangladesh. Based on the evidence before it, the Tribunal is not satisfied that any discrimination or difficulties she would experience as a Christian woman or as a divorced or separated Christian woman if she were to return to Bangladesh now or in the reasonably foreseeable future would amount to serious harm or significant harm. The delegate’s decision record refers to country information about failed asylum seekers and, consistent with the earlier DFAT report cited by the delegate, the current DFAT report assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.[16] For the avoidance of doubt, the Tribunal has considered the country about the treatment of voluntary and involuntary returnees, and find there is no real chance that the first named applicant will face serious harm or significant harm on this basis.
[16] DFAT Country Information Report on Bangladesh, 30 November 2022, [5.26] noting that ‘Authorities take an interest in high profile individuals, but the vast majority of returning Bangladeshis would not attract such an interest’; see also the country information referred to in the delegate’s decision, p16.

In summary, the evidence presented by the first named applicant is not sufficiently detailed to satisfy the Tribunal that she faces a real chance of persecution in Bangladesh owing to any reasons in s 5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that she will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for any reason set out in s 5J(1)(a). Furthermore, while the Tribunal accepts that women and Christians may encounter discrimination in Bangladesh, having regard to the evidence about the individual circumstances of the applicant, the Tribunal is not satisfied that any discrimination she may experience in Bangladesh, even when considered on a cumulative basis, will rise to level of serious harm or significant harm.
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). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17] ‘Significant harm’ is exhaustively defined in s 36(2A) and s 5(1) of the Act, which are extracted in the attachment to this decision.
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
On the evidence before it and having regard to what it has accepted of the applicant’s claims and circumstances, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that she will face significant harm as set out in s 36(2A) and s 5(1) of the Act. Accordingly, the Tribunal does not accept the applicant will be arbitrarily deprived of her life; or that the death penalty will be carried out on her; or that she will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of claims made by the second named applicant
Before the Department and in a written statement to the Tribunal in October 2019, the second named applicant claimed he would face persecution as a convert to Christianity. At the interview with the delegate, he stated that there is a Christian community which does not have too many problems in Bangladesh but converting from Islam to Christianity is very hard. He told the delegate he was scared his father will force him to follow Islam if he returns to Bangladesh and that he will have problems with his father if he refuses Islam. He told the delegate he has not been in contact with his father since the beginning of 2019, but he was in contact with his grandmother and other maternal relatives. He claimed he would face harm from his father, his paternal relatives, and religious extremists in Bangladesh. In a lengthy statement submitted to the Tribunal in October 2019 he stated his father is angry because he is going to be baptised as a Catholic Christian and his mother has filed for divorce. As noted above, the second named applicant declined the invitation to provide oral evidence about his claims for protection at a hearing, and there is no evidence before the Tribunal about what, if any contact, the applicant has had with his father since 2019.
The Tribunal accepts that the second named applicant is the son of a Christian mother and a Muslim father. The Tribunal accepts that his parents separated when he was a child and that, as a child, he was both a witness to and a victim of family violence while he was living at his father’s home. The Tribunal accepts that after the first named applicant and her husband separated in 2008 the second named applicant continued living with his father until around 2011. The Tribunal accepts that from 2011 he mostly lived with his mother and her parents in Dhaka. The Tribunal accepts that his maternal family are Catholics and that he has attended church with his family members in Dhaka and, more recently, in Australia. The Tribunal accepts that his mother travelled to Australia in 2013 and that, in 2014, his father gave him permission to travel to Australia and live with his mother.
The Tribunal finds the second named applicant is an adult who has lived in Australia for a decade. The delegate’s decision notes that the second named applicant only began taking steps to be baptised in 2019, at which time he had been in Australia for 5 years. When the applicant applied to the Tribunal for review of the delegate’s decision, he submitted a written statement (the October 2019 statement) in which he recalls witnessing and experiencing family violence before his parents’ separation and when he lived with his father. In the same statement he claims that he is preparing to be baptised and, if he returns to Bangladesh, he will not be able to practise Christianity because his father won’t let him and, if he relocates, he will not be able to practise Christianity because he carries an Islamic name. He states that while his father gave him permission to come to Australia for a better future, he did not give him permission to change his religion. He claims his father and his father’s family may kill him because he has converted to Christianity. He also claims he will be at risk from religious extremists in Bangladesh and refers to country information about the situation of Christians in Bangladesh.
There is a lack of information before the Tribunal about the second named applicant’s current religious practices since he was baptised in 2020 or how he plans to express his religious beliefs in Bangladesh. The Tribunal accepts that the second named applicant was baptised in November 2020 and, for the purpose of this decision, accepts that he may now identify as a person of Catholic faith. However, the evidence before the Tribunal does not provide any meaningful detail about the current religious practices of the second named applicant, including whether he currently attends church or how he expresses his religious beliefs. Nor is there any evidence before the Tribunal about what, if any contact, the applicant has had with his father since 2019 or what, if anything, he knows about his father’s current circumstances in Bangladesh. The Tribunal has considered the letter of [Fr F], dated 24 June 2024, that was provided to the Tribunal in support of the applicant’s request that his matter be referred to the Minister. This letter states that the author knew the applicants for four years and then they moved out of the area. While the letter describes the applicants as ‘Good Catholics’, it does not provide any insight into the current religious practices of the second named applicant.
The Tribunal accepts that he is the child of an interfaith marriage, that he has a Muslim name, and that he was baptised in Australia in 2020. On the limited evidence before it, while the Tribunal accepts that the second named applicant may now identify as a person of Catholic faith, the Tribunal is not satisfied that he attends church on a regular basis or that he would be motivated to do so in Bangladesh. The evidence before the Tribunal about the second named applicant’s religious practice is not sufficient to enable to satisfy the Tribunal that the applicant regularly attends church in Australia or that he would be motivated do so if he returns to Bangladesh. However, acknowledging that his maternal relatives are practising Catholics, the Tribunal accepts that he may occasionally attend church in Dhaka in the company of these relatives. Given the lack of evidence before it about how the second named applicant currently expresses his religious beliefs, the Tribunal is not satisfied that he has a subjective fear of harm in Bangladesh for reasons related to his religion. For the avoidance of doubt, the Tribunal is not satisfied that the applicant would suppress or conceal his genuine religious beliefs in Bangladesh because of any fear that he would be harmed by his father, his paternal relatives, or religious extremists.
Given the passage of time since 2019 and the lack of evidence about whether the applicant has had any contact with his father since 2019 or what type of relationship, if any, now exists between the father and his adult son, the Tribunal is not satisfied that there is a real chance that the second named applicant would face serious harm or significant harm from his father or his father’s extended associates of extended family if he were to return to Bangladesh now or in the reasonably foreseeable future. On the evidence before it, the Tribunal is not satisfied that the second named applicant’s father has threatened to harm either applicant while they were in Australia and nor does the Tribunal accept that he has threatened the second named applicant’s maternal relatives in Dhaka. Having considered all the evidence before it, the Tribunal is not satisfied that his father would be motivated to harm him if he were to return to Bangladesh now or in the reasonably foreseeable future because of his actual or perceived religion. Based on the limited evidence before it, the Tribunal is not satisfied that there is a real chance that his father will force him to follow Islam if he returns to Bangladesh or that there is a real chance that he will suffer serious harm or significant harm at the hands of his father or any other paternal relatives for reasons related to his religion, including his actual or perceived conversion to Christianity.
With respect to the claim that the second named applicant will face harm from religious extremists as a Christian convert, the Tribunal has considered the available evidence about the applicant’s individual circumstances, religious practices, and the country information. As noted above, the request for a referral to the Minister refers to recent events in Bangladesh, but no information is provided about the impact of these events on the situation of Catholics in Dhaka or the applicant’s personal circumstances, or the power and influence of his father who, as noted above, is claimed to have ‘links and influence with authorities due to his connection with the Awami League’. In the present case, there is insufficient evidence to satisfy the Tribunal that there is a real chance that the second named will face serious harm for reasons of his actual or perceived religious identity, beliefs and practices if he were to return to Bangladesh now or in the reasonably foreseeable future. In reaching this conclusion, the Tribunal has had regard to country information about the situation of Christians and Christian converts, including the information provided by the applicant and the information in the most recent DFAT report which indicates that the risks facing Christian converts will depend on individual circumstances.[18]
[18] DFAT Country Information Report on Bangladesh, 30 November 2022, [3.59]–[3.60]; see generally on the situation of Christians [3.54]-[3.60]
The Tribunal has considered the second named applicant’s claims individually and cumulatively. The Tribunal is not satisfied, on the evidence before it, that he has a well‑founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Having regard to the above findings, the Tribunal is not satisfied that there is a real chance that the second named applicant will suffer serious harm or significant harm for any of the reasons claimed. The applicant has not claimed and, based on the country information that failed asylum seekers are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily, the Tribunal does not accept that there is a real chance that the applicant will face serious harm or significant harm as a failed asylum seeker.[19] Based on the evidence before it, the Tribunal is not satisfied there is a real chance that the second named applicant will face serious harm or significant harm from his father or paternal relatives or from religious extremists for reasons related to his religion. The Tribunal is not satisfied that there is a real chance the applicant will face serious harm or significant harm in Bangladesh for reasons of his religion and/or if he were to return to Bangladesh as a failed asylum seeker. The second named applicant’s claimed fear of persecution is not well-founded as required by s.5J of the Act. Therefore, he is not a refugee within the meaning of s.5H.
[19] DFAT Country Information Report on Bangladesh, 30 November 2022, [5.26] noting that ‘Authorities take an interest in high profile individuals, but the vast majority of returning Bangladeshis would not attract such an interest’; see also the country information referred to in the delegate’s decision, p16.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). Having regard to its findings of fact and what it has accepted of the applicant’s claims and profile, 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 a receiving country, there is a real risk that the applicant will suffer significant harm. Having considered all the evidence before it and what it has accepted about the applicant’s claims singularly and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm for any of the reasons claimed or for any other reason. It follows the Tribunal is not satisfied that any discrimination or difficulty that the second named applicant may encounter if he were to return to Bangladesh would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) and s 5(1). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Ministerial intervention
Section 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
On 12 August 2024 the applicants requested that the Tribunal refer their matter to the Minister for Ministerial intervention. The submissions made in support of this request refer, in general terms, to the applicants’ protection claims and country information about the treatment of Christians and women in Bangladesh. As noted above, the applicants declined the invitation from the Tribunal to put forward evidence and arguments about their protection claims at a hearing. Accordingly, the Tribunal has decided this matter based on evidence before it and, for the reasons given above, is not satisfied that either applicant is owed protection obligations.
On the material before it the Tribunal is not satisfied that the applicants’ circumstances fall within the types of unique and exceptional circumstances identified in the ‘Minister’s guidelines on Ministerial powers (s 351, s 417, and s 501J)’. While the Tribunal has considered the submission made by the applicant’s representative on 12 and 19 August 2024, as the Tribunal noted in its correspondence to the applicants on 12 August 2024 cases that will not meet the guidelines for referral to the Minister include requests that raise claims only in relation to Australia’s non-refoulement obligations.
The Tribunal acknowledges that the applicants have family ties to Australia and that they have now resided in Australia for over a decade. Both applicants have worked and studied in Australia. The Tribunal has before it letters from the first named applicant’s current and former employers as well as records related to her study in Australia. The second named applicant completed his higher school education in Australia and is currently working as [an occupation]. He has plans to engage in further study. However, without further and better particulars about the applicant’s circumstances the Tribunal is not satisfied that their circumstances fall within the guidelines for referral to the Minister.
The applicants can make a Ministerial intervention request directly to the Minister without a referral from the Tribunal.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy either criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Frances Simmons
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.
…

[2024] AATA 4311

24 September 2024.

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