2001276 (Refugee)

[2022] AATA 4739

2001276 (Refugee) [2022] AATA 4739 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  2001276

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Ann Duffield

DATE:29 September 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 29 September 2022 at 10:36am

CATCHWORDS

REFUGEE – Protection Visa – Bangladesh –religion – Hindu – fears harm from Islamic extremists – imputed political opinion – membership of a particular social group being a Hindu activist – prominent member of Jago Hindu – persecution feared is not unintentional but involves significant discriminatory conduct – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Bangladesh applied for the visa on 2 May 2014 and the delegate refused to grant the visa on 3 December 2014.The applicant appealed that decision to a differently constituted tribunal and the decision was affirmed on 6 May 2016. The applicant appealed that decision to the Federal Circuit Court which upheld the decision [in] May 2019. The applicant appealed that decision to the Federal Court of Australia which remitted it back to the Tribunal [in] December 2019.

3. The matter is before the Tribunal because the Federal Court found that the previously constituted Tribunal erred in not taking into account a letter from Jago Hindu supporting the applicant’s claims. In effect the Court found that the Tribunal’s failure to consider a document amounted to a failure to exercise jurisdiction.

4. The applicant appeared before the Tribunal on 22 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review and the representative attended the hearing. Whilst all Tribunal hearings are recorded, on this occasion the recording equipment malfunctioned, and a transcript of the proceedings is only available until 48 minutes into a three hour hearing.

6. The issue in this case is whether the applicant is someone to whom Australia has protection obligations.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

7. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

21. 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

    BACKGROUND

22. The applicant is a citizen of Bangladesh born on [date] ([age] years old). He first arrived in Australia on a visitor visa on [date] April 2014. He previously applied for a visitor visa in December 2013 but that was refused. The applicant applied for a protection visa on 2 May 2014.

23. The applicant was married in Australia to Ms [B] on 29 July 2020. Their daughter was born prematurely, on [date]. [Ms B] has had several visits to Australia since 2017 and most recently arrived on [date] October 2019 on a student visa. She is currently on a bridging visa.

24. The applicant is from the Barisal district in Bangladesh in south central Bangladesh, about 1,000kms from Dhaka, where he was working as a [Occupation 1] prior to his travel to Australia. He is currently employed full time as a [Occupation 1].

    Issue

25. The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because:

    ·of his religion (Hindu);

    ·he fears harm from Islamic extremists;

    ·his membership of Jago Hindu and being a Hindu activist

    ·his imputed political opinion as it differs from the fanatical Muslim groups in Bangladesh.

    Before the Department

26. In his statutory declaration to the Department, he sets out his claims as follows:

    I fear that if I was forced to return to Bangladesh I would be seriously harmed because of my

    faith. In particular, I fear that I would be harmed because of my past activities with an

    organisation in relation to which I was involved — Jago Hindu.

    I fear this harm from fanatical Islamists — in particular, persons affiliated with Jamat-E-Islam;

    students from a Madrasha located in TV gate, Mahakhali, Dhaka; and persons affiliated with the religious cult associated with Delwar Hossain Sayedee.

    I was born in a village of [Barisal] Bangladesh on [date] and I

    am [age] years old.

    I am a Hindu. I am unmarried and have no children.

    I moved out of my village to the capital city of Dhaka and found a job in a

    [company] during 2010 — [Company 1].

    In approximately August 2010 I met an Australian at a [exhibition]

    who invited me to join his company and work for more money at [Company 2].

    During this time that I was working for [Company 2] (now known as

    [name]), I started doing volunteer work after hours and during my holidays with Jago Hindu,an organisation working for the rights of Hindus and to raise awareness about Hinduism in Bangladesh.

    In approximately January 2011, I commenced [studies]. Between

    approximately August 2011 and February 2013, I worked part time for [Company 2].

    During this period, I continued my [studies]. In December 2012, I

    completed my studies [and] commenced the practical component of my

    studies with [a workplace]. In approximately

    November 2013, I was awarded a [qualification]. In September 2013, I

    obtained a position with [an employer] as a [Occupation 1].

    In approximately the end of September 2013, I received several telephone threats accusing me of abusing Mohammad and Allah and also of distributing cartoons of Mohammad. I was
    accused of being an enemy of Islam and Allah. I was told that I would be killed. I believed these threats may have come from fanatical Islamists. I reported these threats to the local police station, however, the local police failed to take any action. I changed my mobile number.

    In approximately the beginning of October 2013, I attended a meeting of the

    executive committee of Jago Hindu, in my capacity as a volunteer. I was on my way to [a place] when I was stopped by armed Islamic Huzur (that is, fanatical muslims) and students from the Madrasa. I was told to stop my activities with Jago Hindu. I was accused of abusing Mohammed, kicking the Holy Qurati, distributing cartoons of Mohammad, and being an enemy of Islam and Allah. I was told that if I stayed in Bangladesh that I would be killed. I fled and was rescued by persons from the surrounding shops. I informed the police station, however, once again my complaint was ignored by police. I also reported this incident to Jago Hindu.
    In approximately the middle of October 2013, I attended a meeting of Jago Hindu. I was on my way to [a place] when I was attacked from behind by a small group of armed Islamic

    fanatics. The haversack on my back was cut. I fled — they were yelling "Catch this Malaun!'

    (Enemy of Islam). I was rescued by persons from a nearby tea store.

    The next day, I was informed that some fanatical muslims had visited my house whilst I was at work and asked my housemate about me. I moved residence.
    At the end of October 2013, my father received a telephone call — he was warned that I would be killed. The caller also threatened to burn my father's house and my father's shop. My father informed our local Union Council Member.

    The following week, my father's residence was visited by persons looking for

    me. My father refused to tell these persons where I was. The small building housing the guest

    reception and kitchen on our property was ransacked and damaged. My father was told that, if I was not located or voluntarily surrendered myself, my father's shop would be burned down. My father went to the local police station to register the threat, however, at that point in time, there was a wave of demonstrations by the Islamist fanatics — specifically, Jamat-E-Islam and Hefajot-E-Islam. The police were thus concerned of the potential for retaliation and were afraid to register any details regarding the threat.

    Following this incident, my parents moved to a relative's residence in the next

    village. However, my parents were located by the fanatical Islamists once again. Consequently, my parents moved to Dhaka to reside with my [sister].

    On approximately [date] November 2013 after finishing work at around [time]. After I left my

    office I noticed that I was being stalked by some fanatical [Islamists]. When I noticed that I was being followed, I quickly got into a micro-bus to my [suburb]. My house was around 4 to 5 minutes walk from where the bus dropped me off.

    During this walk I again realised I was being followed this time by 4 or 5 Islamic fanatics. I

    became very frightened and ran away as fast as I could. They were calling out to me, saying

    that they know where I live and they know I live at [number], When I got home I locked the

    collapsible gate at the front of our yard but they did not following right to my house, they lingered back a few metres.

    Approximately 2 or 3 days later I left this house and moved to a different suburb, named

    [name], where I stayed with my friend and work colleague [name], his address

    was [address]. I stayed here intermittently for approximately 6 weeks, sometimes staying at my [sister’s] house.

    I explained to my family that I was concerned for my safety and that I was still being harassed

    by Muslim fanatics. They agreed that I was not safe even though I had moved around to try and avoid the people who were threatening to harm me. They said that I should flee Bangladesh and find a place where I am safe. I could not stand the constant fear of feeling as though I was always being followed, so I decided it was best that I leave the country.
    I thought that Australia would be a place that I would be safe. So on 9 December 2013 I applied for an Australian visa at the High Commission. Unfortunately this application was refused soon after as I did provide evidence of having enough funds in my bank account. I did not know this was required.

    On approximately 18th or 19th of January 2014 I received a phone call from

    an unknown number, I did not answer, but when they called back an hour or so later my

    curiosity got the better of me and I took the call. I did not know the person but they told me that I was 'on death row' and that I should count my days as I did not have many left. They said they were going to kill me. They man on the phone said they would also go after my family if they did not kill me.

    On the same day my father received a phone call from the same telephone number. An

    unknown male caller asked him about me and told him that if he did not tell them where I was

    that they would kill him as well. I became extremely worried that my family may also be harmed.
    After the phone calls I went to stay at another place, a small flat where I subletted a room. This address was [address]. After relocating I began preparing another visa application to come to Australia.

    I was scared and became paranoid that any stranger may try and harm me, especially people

    who looked like Muslim. On [date] February 2014 after finishing work at around 9:45pm. I was

    walking towards the bus [stand]. I noticed a group of people were walking

    briskly behind me. I thought perhaps they were rushing towards me and I panic. I ran and got

    into the nearest bus. I was not sure whether I was their target, but I was extremely afraid.

    I made my next visa application on approximately 13 March 2014 and provided evidence from

    my bank account. I also provided evidence from my former [employer], who I still intermittently worked for as evidence that I had to return to Bangladesh for work. As my first visa we rejected because I did not demonstrate sufficient ties to Bangladesh, in my second application I had to demonstrate to that I had reasons to return to Bangladesh even though this was not my intention. I obtained some false documents from a broker who created a marriage certificate so I could say that I had a wife and child to return to in Bangladesh. This is not true; I have never been married and I have no children. I regret having done this but there was no other way that I could flee Bangladesh.
    When I was waiting for the visa to be processed, I was moving around, sometimes I would stay with my sister and sometimes in my subletted room. I was tense and afraid; I did not know what I would do if the visa was refused. I was finally granted the visa on 2 April 2014.

    As soon as I got the visa, I made arrangements to leave Bangladesh. I flew from Dhaka to

    Australia via [a country] on[date] April 2014.

    I have contacted my parents and sisters by telephone since arriving in Australia. I thought that

    after I left Bangladesh the people who were after me would leave my family alone. However,

    my parents have told me that the Islamists have been looking for me and that they called my

    father on his phone. My father told them that I left Bangladesh, to which they replied if they

    ever find me they will kill me. My father change his mobile phone and I advised may parents to leave Dhaka and return to our village, [Village 1].

    If I am returned to Bangladesh, I am afraid that I will be subjected to serious harm including

    being attacked and possibly killed. I would be constantly afraid that I may be found by the

    people who I have constantly threatened me. I fear this harm at the hands of Islamist fanatics.

    I have been threatened on numerous occasions by unknown Islamist fanatics. My house was

    ransacked and vandalised by people looking for me. I could not stay anywhere safely; I was

    living with a constant fear.

    i am afraid that I would not be protected by anyone, including the authorities,

    because I am Hindu, The police and the authorities do not protect minorities including Hindus.

    When I reported my problems, they refused to register my complaint and would not make a

    report about what I told them to had occurred.

    Before the presently constituted Tribunal

1. The applicant provided the Tribunal with a number of submissions including those submitted to earlier decision makers, including the following:

   a.A translated letter dated 20 April 2014 from [a] Parish in Dhaka stating that the applicant is a member of Jago Hindu and he works for Hindu rights and Hinduism. It states that he reported facing several killing attempts and threats from an unknown number of the Jamate-E-Islam and Madrasa student. His family also faced serious threats and that if the applicant returned to Bangladesh he would be killed.

   b.A translation of a police report by the applicant’s father dated [March] 2016 stating that he and his family were attacked and that they threatened to get his son. This has been corroborated by a newspaper article published in the [Newspaper 1] in February 2018.

   c.A translated copy of a document from the Dhaka Metropolitan Police dated 26 February 2018 stating that the applicant’s sister was threatened by phone by unknown people who told her that if she did not provide them with the whereabouts of the applicant then harm would befall the whole family. She states that if the applicant returns to Bangladesh, they will kill him and harm the family.

   d.A letter from Jago Hindu dated [April] 2014. Stating that the applicant is a member of the organisation and works for Hindu rights and Hinduism. The letter states that in September and October 2013 the applicant and his family faced several killing attempts and threats from an unknown number of the Islami Huzur who made false claims about him abusing Mohammed and the Quaran.

   e.Letter from [an organisation] dated 20July 2022 stating that the applicant is a member of their community since 14 January 2018 and volunteered since 2016.

2. In a submission to the Tribunal the applicant states that there is an escalation of Islamic extremism in Bangladesh targeting religious minorities, particularly Hindus. He states that the fall of Afghanistan has encouraged home grown extremists to target and harm Hindu religious minorities. He has provided a large number of newspapers, research and online articles to support this claim.

3. The applicant states that in February 2019 during a Hindu religious gathering at his local temple in Bangladesh, a group of Islamic extremists attacked the gathering. He states that the extremists mentioned him by name and attacked the temple and people. He states that his family home was attacked and vandalised.

4. The applicant also states that in early October 2021 his parents were targeted and attacked by Islamic extremists when they went to a village from Dhaka. He claims his parents were beaten and they yelled at his parents stating that if he (the applicant) returned to Bangladesh then he would be killed. He states that his family are currently moving from place to place for safety reasons.

5. The Tribunal has also received a statutory declaration from [Mr A] who was living in Dhaka and employed the applicant. He states that whilst he was not a direct witness to the events claimed by the applicant, he is aware of extremism and attacks on Hindus by extremist Islamic militants.

6. On 12 September 2022 the applicant provided copies of several newspaper articles from the [Newspaper 1] dated [date] February 2018 and the [Newspaper 2] dated [date] November 2013. Both these articles refer to what they have characterised as attacks by “terrorists” on the home of the applicant’s family. The articles state that the terrorists were looking for the applicant as he is a prominent member of Jago Hindu and that these attacks have forced the family to move around. The article in [Newspaper 2] also states that the applicant’s father reported the incident to the Police [in] March 2016 and that the terrorists have continued to intimidate and threaten the family at various times. The applicant and his family were named in both articles. The translated articles follow:

   The [Newspaper 1]
   [details deleted]
   Staff Reporter:
   [Information deleted].

   The [Newspaper 2]
   [Details deleted]
   Staff Reporter:
   [Information deleted].

7. The applicant has provided open source information in relation to escalating attacks on Hindus in Bangladesh published in 2021 and 2022. There is also an article from Counter Terrorist Trends and Analyses, Volume 13, Issue 4, September 2021 about the impact of the rise of the Taliban in Afghanistan on terrorist and extremist networks in Bangladesh. The article posits that jihadists train in Afghanistan and return to Bangladesh to further radicalise Islamicists in that country.

8. In other articles, attacks by extremists on the ISKCON temple in Dhaka in March 2022, and the Kainmari Temple August 2022 have been blamed on the government’s failure to protect minority Hindus. An Economist article in November 2021 commented on widespread anti-Hindu violence in Bangladesh involving vandalism of homes and temples and the deaths of some Hindus.

   Country Information DFAT Country Information Report, Bangladesh, 22 August 2019

9. As per DFAT information, most Hindus are ethnically and linguistically Bengali, and are not physically distinguishable from the majority Muslim population. Hindus live throughout Bangladesh, including in Dhaka. There are, however, a small number of ‘Hindu belts’ in the south, east and north of the country where Hindus comprise up to 40 per cent of the local population. Some exclusively Hindu villages exist, although most villages are religiously mixed. The percentage of Hindus in Bangladesh has fallen considerably over time. There have been two mass emigrations of Hindus from Bangladesh (and East Bengal).

10. At the time of Partition, approximately 2.5 million Hindus left then-East Pakistan for India – the 1951 Census indicated a fall in the Hindu population of 21.4 per cent from the previous Census ten years earlier. The second occurred during the 1971 civil war, when up to 8 million Hindus (70 per cent of the Hindu population of East Pakistan) fled the country and as many as 2.4 million died, including from being deliberately targeted by the Pakistan Army and its local allies. The overwhelming majority of Hindus who have left Bangladesh have gone to India, although small numbers have also gone to western countries.

11. No legal or other restrictions prevent Hindus from freely practising their faith, or from participating in broader society. Hindus have made a significant contribution to Bangladeshi public life, including in politics, government, academia, business, and the arts. While they have traditionally supported the Awami League (AL) and other left-leaning parties such as the Communist Party, all major political parties have fielded Hindu candidates. While the current AL Cabinet has Hindu members, the overall level of Hindu political representation remains low and Hindu community groups have campaigned for reserved seats in parliament. Similar to other religious minorities, Hindus are not well represented in the security forces, but local sources told DFAT that that situation is now changing, and more Hindus are being recruited. Like other minorities, the Hindu community is disproportionately affected by historical and continuing land appropriation (‘land grabbing’).

12. During the 1965 war between Pakistan and India, the then-Pakistani government designated Hindus as ‘enemies’ and many had their property seized under the Enemy Property Act (1965). The Vested Properties Return (Amendment) Act (2011) allowed Hindus to apply for the return of, or compensation for, property seized under the 1965 Act. However, Hindu communities and advocacy organisations have complained that the Act is too narrowly defined, and the application process cumbersome and convoluted.

13. In June 2016, an NGO representing organisations with claims for property returns alleged that government officials tasked with reviewing claims were denying them even when required documentation was in order or were classifying properties as state-owned and therefore not eligible for return. The NGO reported that 70 per cent of all claims remained unresolved four years after the enactment of the 2011 Act.

14. In the lead-up to and following the 2014 elections, activists from the Islamist Jamaat-e-Islamic party launched a wave of attacks against the Hindu community, killing more than two dozen, destroying hundreds of homes and businesses, and displacing thousands. DFAT understands that the primary motivation for the anti-Hindu violence, which was most prevalent in the northwest, was resentment over the testimony of Hindu witnesses in International Crimes Tribunal (ICT) proceedings. In the aftermath of the violence, the High Court ruled that law enforcement agencies had ‘seriously failed’ to protect members of vulnerable groups, including Hindus.

15. The government responded by providing assistance to victims and helping communities restore religious and private property damaged in the violence. The 2018 election was not characterised by such violence. The small-scale localised attacks carried out by Islamist militant groups against minority religious and social groups across the country in 2013-16 killed or seriously injured several Hindus. Police were despatched to protect temples and clergy in response to the attacks and to death threats made by militants. DFAT is not aware of any subsequent attacks of a similar nature. There have been occasional cases of mob violence against Hindu targets.

16. In October 2016, a mob of at least 100 violently attacked a Hindu village in Brahmanbaria district in east-central Bangladesh. Although police reinforcements and paramilitary border guards were despatched to the area, the attack left dozens injured, and at least 15 Hindu temples and over 200 Hindu homes badly damaged and looted. Initial media reports suggested Islamists had incited the violence by alleging a Hindu had posted on Facebook an edited photograph of a Hindu deity seated atop the Kaaba in Mecca. A subsequent government investigation found the Facebook photograph had been planted, most likely as a means to incite the violence. A NCHR investigation concluded that the incident was a pre-planned effort aimed at appropriating Hindu land. Authorities arrested and/or charged more than 1000 people connected to the incident, including a local police officer, while the AL suspended three local leaders from the party for their involvement.

17. In a separate incident in November 2017, a mob of approximately 20,000 in Rangpur district in northern Bangladesh set fire to and vandalised approximately 30 private homes belonging to Hindus. The violence followed a Facebook posting judged to demean the Prophet Muhammad. A press report stated one person was killed during the incident, and five suffered critical injuries. Police arrested more than 50 in the wake of the attack, and the government pledged to compensate those affected. DFAT assesses that Hindus with historical land claims face a moderate risk of official discrimination because they are unlikely to be able to reclaim their property or obtain compensation despite a legal pathway enabling them to do so. DFAT assesses that Hindus face a low risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions such as national elections. Hindus also face a risk of physical violence in the form of mob attacks triggered by localised factors, although these are relatively uncommon, and from sporadic attacks by Islamist militants

    Tribunal hearing

18. The applicant’s evidence during the Tribunal hearing was largely consistent with his written statements and submissions with some added relevant detail about how he went about promoting Hinduism in the community. He also provided additional information about his association with ISKCON (Hare Krishna sect).

19. The Tribunal put to the applicant its concerns about his credibility and the corroboration of his claims. The Tribunal also put to the applicant it had some difficulties accepting that he had an adverse profile such that it would attract the sustained interest of anti-Hindu elements. The Tribunal also put to him country information from DFAT indicating that Hindus did not face systemic discrimination or persecution in Bangladesh. The applicant responded to these concerns at the hearing and subsequently in writing. This evidence is included, where relevant, in the assessment of claims and evidence below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Credibility

20. The Tribunal has given careful consideration to the documentary evidence provided to it by the applicant, bearing in mind the ease with which fraudulent documents can be obtained in Bangladesh and there was a lengthy discussion with the applicant during the hearing about the probity of some of the documents he provided and the Tribunal’s concerns about their veracity. Some of the documents can also be seen as self-serving, relying as they do on reporting by the applicant and/or his family about events rather than independent verification that those events occurred as specified, particularly for the reasons specified. 

21. The Tribunal is also mindful that in May 2016 a differently constituted Tribunal formed a view that the applicant was not a witness of truth and rejected his claims that there was a systematic pattern of harassment or targeting of the applicant because of his religious views, work with the Hindu community organisation or for any other reason. That differently constituted Tribunal found that the applicant did not have a profile so significant that he would come to the notice of any person that may seek to persecute him for his religious views and activities.

22. The present Tribunal also has concerns about the applicant’s claims that both he and his family were systematically targeted by Islamicists over a period of some months whilst he was in Bangladesh and then at various times after he had left for Australia.

23. Equally, the applicant confirmed that he remained working at two jobs for the relevant period from around September 2013 to the time he departed Bangladesh in April 2014. He also admitted that these alleged Islamicists that wished him harm had located him on several occasions but were either unable to catch him or harm him. The Tribunal put to him that if they wanted him dead as he claimed, surely his daily routine and attendance at the same two workplaces for such a long time would offer them ample opportunity to follow through on their threats.

24. His account of how these perpetrators obtained contact details for himself and his family members was also unpersuasive, he himself said he was “shocked” that they somehow were able to obtain their personal mobile phone numbers and locate the family home several hundred kilometres away from Dhaka.

25. Having said that however, the applicant has also provided specific publicly sourced material including newspaper articles, to support his claims of attacks against himself and his family in Bangladesh from November 2013 to 2016 which cannot be ignored, and which were not in front of the delegate or the differently constituted Tribunal.

26. Having considered the evidence and the inconsistencies present therein, the Tribunal has formed a view that the applicant may have embellished his claims to support his application. The Tribunal finds it difficult to accept that the applicant or his family was subjected to a concerted, pre-meditated and orchestrated campaign to harm or kill him. The incidents described in the newspaper do not identify any particular group as being responsible for the attacks, nor are they necessarily linked except by the statements of the family themselves but have rather described the perpetrators rather loosely as “terrorists”. The inconsistencies, however, are minor and can be considered understandable in the context of the subjective fear the applicant was facing and the time and continues to face.

27. Therefore the Tribunal does accept that the applicant and his family home were attacked and his family threatened. Having weighed up the evidence the Tribunal cannot be satisfied that the perpetrators were not motivated by anti-Hindu sentiments against the applicant, or that he was not known to them by reason of his activities with Jago Hindu to promote Hinduism. The Newspaper reports name the applicant and his family members and certainly support a finding that the applicant has been targeted individually and through his family by reason of his association with Jago Hindu and his religion.

    Findings and reasons

28. The Tribunal accepts that the applicant is of the Hindu religion and was involved in ISKCON, and that he has been actively involved in advocating and recruiting others into the Hindu faith in Bangladesh though the Hindu organisation Jago Hindu. He has provided evidence of his past and current activities including proselytising and organising and participating in social activities. He has also been involved in the Jago Hindu Organisation Bangladesh. This organisation actively works to support the rights of Hindus and to raise awareness of Hinduism in Bangladesh. The Tribunal accepts that the applicant worked as a volunteer for this organisation and went door to door to promote Hinduism. The Tribunal accepts that there is a not far-fetched chance that this activity brought him to the adverse attention of anti-Hindu elements that wished him harm.

29. His accounts of the attack on him, particularly in October 2013 are credible and the Tribunal cannot ignore the newspaper accounts of the attacks on his family and their home in 2016.

30. On balance, the Tribunal accepts that the applicant and his family were attacked by anti-Hindu elements in the past for these reasons and that he remains objectively and subjectively fearful of suffering significant harm for the same reasons should he return to Bangladesh either now or in the reasonably foreseeable future.

    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?

31. The applicant fears that if he returns to Bangladesh he will be persecuted or face significant harm because he is an activist Hindu who has come to the adverse attention of Islamicist extremists.

32. For the reasons above the Tribunal is satisfied that the applicant has suffered harm in the past and may suffer significant harm in the future by reason of his religion. The Tribunal accepts that this is the essential and significant reason for the feared persecution. In making this finding the Tribunal is very mindful of the DFAT information which states that the harm faced by Hindus in Bangladesh by reason of their religion is uncommon. However, the Tribunal is satisfied that the profile of this applicant and his past experience, confirmed by contemporaneous newspaper articles, places him at risk of serious harm should he return to Bangladesh now or in the foreseeable future.

33. The applicant and members of his family have suffered physical harm and harassment such that they fear for their lives and safety and the life of the applicant. The Tribunal is satisfied that the persecution feared is not unintentional but involves significant discriminatory conduct.

34. The Tribunal has considered whether the applicant’s fear is well founded.  According to the judgement of Justice McHugh in 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.

35. The applicant reported attacks on himself and at least one incident of his family being harassed, and their property ransacked as a result of the applicant’s association with Jago Hindu. These incidents are supported by newspaper articles at the time. These incidents occurred in 2013 and 2016 – the latter attacks occurred after the applicant had departed Bangladesh and indicate a continued interest in the applicant by the perpetrators.

1. The Tribunal also notes that the security situation in Bangladesh in relation to Hindus has deteriorated over the past almost ten years that the applicant has been in Australia. The Tribunal accepts that the applicant’s return to Bangladesh and the interest in his activities and his family may re-ignite an actual intention by the perpetrators to harm the applicant should they discover his return. Whilst this may be a small chance, it is not, in the context of all the evidence and the view of the Tribunal, a remote chance.

2. The Tribunal has considered whether the applicant would be able to receive effective state protection should he return to Bangladesh.

3. The country information available to the Tribunal indicates that the local authorities and police are underfunded and unable to respond effectively to outbreaks of inter faith violence. The United Kingdom Home Office has observed that “the effectiveness of the police is undermined by lack of basic resources, including a lack of infrastructure, personnel, training and proper investigative equipment, inefficiency and endemic corruption”. As a result, “the police often failed to prevent societal violence or protect members of religious minorities, political opponents and women”. United Kingdom Home Office Country Information and Guidance – Bangladesh, November 2014

4. Despite reporting the attacks to the police at the time, neither the applicant’s complaint about the attack against himself or the family’s report to the police about the attack on the family home and threats to themselves appear to have been acted upon.

5. The Tribunal has considered whether the applicant can relocate in another area of Bangladesh.

6. The Tribunal has accepted that the applicant has been targeted for harm and that this has extended to threats to his family. The applicant’s family have been identified by the perpetrators who have targeted the applicant and it is claimed that they move frequently to avoid detection. In these circumstances, it would be unreasonable to expect the applicant to further endanger his family by taking up residence with them.

7. Equally, expecting him to move around the country to avoid detection without any means of support or ability to hold down a job would also be unreasonable. He has a wife and a young daughter who have no right of residence in Australia and would have to travel with him.

8. The UNHCR defines what could be considered “reasonable” in terms of whether an asylum seeker could, in the context of the country concerned, lead a relatively normal life without facing undue hardship and the extent to which their human rights or economic survival would be placed at risk. In the UNHCR’s view, not every difficulty or danger which may make relocation unreasonable needs to be shown to be Convention-related. Factors rendering relocation unreasonable need to be considered cumulatively.

9. In the context of the entirety of the applicant’s circumstances, therefore, the Tribunal is not satisfied that it would be either reasonable or safe for the applicant and his vulnerable young family to relocate to another area of Bangladesh where they will have no family or support mechanisms including work or access to housing.

10. The applicant is not a national of a third country and does not have the right of residence elsewhere. There is no information before the Tribunal that the applicant can relocate in a third country.

    CONCLUSION

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

    DECISION

12. 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