2001294 (Refugee)

2001294 (Refugee) [2024] AATA 4330 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr James Wardlaw
CASE NUMBER:  2001294
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nora Lamont
DATE:22 August 2024
PLACE OF DECISION:  Melbourne
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 22 August 2024 at 12:40pm
CATCHWORDS
REFUGEE – Protection Visa – Bangladesh – a victim of domestic violence – a member of a particular social group – group single woman who has been the victim of domestic violence– applicant has a real chance of serious harm on return to Bangladesh – gender-based violence and harassment – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 5 March 2015.
The applicant appeared before the Tribunal on 16 August 2024 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant travelled to Australia on a valid Bangladeshi passport and claims to be a citizen of Bangladesh. There is nothing before the Tribunal to indicate that the applicant is not a citizen of Bangladesh, and the Tribunal has consequently assessed the applicant’s claims against that country as her country of nationality and her receiving country.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Migration Act.
There are no non-disclosure certificates on the applicant’s file.
The applicant provided the Tribunal with the following submissions which can be found in the Tribunal file:
·Representative submission.
·Statutory declaration.
·Psychologists report.
·Family violence safety notice.
·Statements made to the police.
·Pregnancy report December 2013.
·Bangladesh court case and dismissal document.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in [Town 1] Bangladesh. Her parents and brother remain in Bangladesh. She first arrived in Australia in 2013 as a student and her husband [Mr A] (who is also her uncle) was a dependent on her student visa. She comes from a conservative Muslim family that she considers middle class. She stated her parents were very strict when she was growing up. At age [age] she finished school and wanted to go into [a major] at university as she was good at science and enjoyed it. Her parents however wanted her to get married but eventually agreed she could continue her studies. She arranged to move in with her aunt and uncle in Dhaka about five hours away from her parents’ home as she needed tutoring before entering university, and this was in Dhaka. She stated she agreed to look after her aunt and uncle’s children when needed in return for living with them. She had met her uncle who was to become her husband, approximately four- or five-times times when she was growing up, prior to moving into their house.
Once she began living at her aunt and uncles house, she had tutoring classes she needed to attend and her uncle [Mr A] would have to take her as she was young, female and did not know the city. They would frequently take a rickshaw. She had tutoring three days a week and her parents had insisted that she go with him. [Mr A] and her aunt had been married for eleven years and had two children. By all accounts it seemed to be a healthy and happy marriage. However, after a while [Mr A] started grabbing her hand, touching her, and asking her questions. He would often force himself onto her. He then took her to someone’s house, and they were shown to a room where they were alone. She didn’t want anything to happen and that is when he said let’s get married. She didn’t want to get married but ended up agreeing to it. She was [age] years old he was in his [age]. He wanted to come to Australia to live, and he had a plan that he would be a dependent on her visa and get permanent residency and then he would be able to bring his other wife and children over to live. In 2011 they were married but it turned out it wasn’t a real marriage, as it wasn’t a legal marriage, so in 2012 they had a registered marriage. For visa purposes to make it seem legitimate they went to his sister’s house and had wedding photos taken for the visa application.
She however did not want to leave Bangladesh and by this time she had moved out of her aunt and [Mr A]’s house, and she was living in a hostel at her school. [Mr A]’s nephew, his sister’s son lives in Australia, and [Mr A]’s plan was to move to Australia and live with his nephew. Her parents were unaware that she had married [Mr A] and it wasn’t until they were at the airport ready to leave for Australia that [Mr A] called her mother and told her they were married. When her aunty found out that her husband had married her niece, she was very upset, and she started spreading rumours about the applicant saying she ruined her life. Once they were in Australia [Mr A] found it difficult with the language barrier and he was struggling with living here, so he went back to Bangladesh in 2014.
The applicant’s husband came back to Australia and in 2015 he began abusing the applicant including kicking her and slapping her. He drained her bank account, and the applicant went to the police and obtained an intervention order against him. He breached the AVO, and he was eventually picked up and deported from Australia. Upon return to Bangladesh [Mr A] begins threatening the applicant’s family. He makes up false charges stating that the family committed fraud by misappropriating 25 Lacs that belonged to him. Arrest warrants were issued however, the charges were eventually dropped.
The Department file contains a dob in email from the applicant’s husband which claims she agreed to marry him for money and so that he could get permanent residency. There was no non-disclosure certificate on the Tribunal file.
The applicant was subjected to ridicule both in Bangladesh and in Australia by members of the Bangladesh community for marrying her uncle and associated reasons. The applicant said she has suffered greatly because of this ridicule and continues to see a psychologist for adjustment disorder, anxiety, and depression.
Findings
The Tribunal accepts the following claims made by the applicant:
·The applicant was groomed by her husband when she was a young teenager, and he was a man in his [age]. He mentally, sexually, and physically abused her and had her under his control.
·She came to Australia because he wanted to get permanent residency and used her as a tool to get here. However, once here he could not cope so he continued to abuse the applicant, returned to Bangladesh, and made false allegations against her and her family.
·The applicant was a victim of domestic violence and had to get AVOs on her husband prior to his departure from Australia.
·The applicant has been ridiculed by the Bangladesh community both in Bangladesh and in Australia.
·The applicant suffers from adjustment disorder, depression and anxiety and has sought treatment for these disorders.
·The applicant was a minor when her uncle groomed her and sexually abused her. Her parents did not know, and no one was able to help her as she was living at her uncle’s home with her aunt and their children. At some point the applicant began to believe it was a real relationship.
Whilst it could appear somewhat unrealistic that the applicant’s aunt did not know about the marriage of her husband [Mr A] to the applicant it is a different culture, he planned it and went to his sister’s house without his wife, and he may have told his wife that he married in order to get the visa, but he was not in a relationship with the applicant. The Tribunal considers that the applicant’s uncle is a predator who was covering his tracks and hiding things from his wife, and when it became clear he had married his niece he tried to blame the applicant and her family.
Conclusion
For the reasons above the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Bangladesh for reasons of her membership of a particular social ‘group single woman who has been the victim of domestic violence’. Whilst the applicant remains married as she cannot get a divorce from [Mr A] from Australia, the Tribunal considers that the applicant would be a single woman upon return to Bangladesh. DFAT reports the following for single women in Bangladesh who wish to relocate: [1] (see further analysis of relocation below).
DFAT assesses that women without access to family or other support networks are likely to face greater difficulties in relocating than men, particularly if they are poor, single or have suffered gender-based violence.
[1] DFAT Country Information Report Bangladesh November 2022 page 36.
The Tribunal finds that the applicant has a real chance of serious harm on return to Bangladesh as a member of a particular social group ‘single woman who has been the victims of domestic violence’. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
Under s5J(2) a person will not have a well-founded fear of persecution if effective protection measures are available to the person in their receiving country. Bangladesh country information indicates that the applicant would not receive effective protection from state authorities. DFAT suggests that people avoid the police, and they cannot be relied upon for protection. [2]
Most people do not trust the police, given their reputation for corruption and violence. Some religious minorities, for example, have benefited from police presence, but most people that DFAT spoke to had a negative view of police. GAN Integrity, a United States consultancy, notes ‘Businesses ranked the Bangladeshi police as one of the least reliable in the world and noted business costs due to crime and violence.’ DFAT assesses that most Bangladeshis, whether in business or not, would avoid contact with police for similar reasons.
[2] DFAT Country Information Report Bangladesh November 2022 page 34.
The courts similarly do not provide any effective protection for people. DFAT suggests they are corrupt, overwhelmed, and dysfunctional. [3]
Court processes are largely paper-based, the bureaucracy is slow and bureaucrats demand bribes merely for moving papers between offices or actioning simple processes. This in turn creates delays and difficulties in verifying documents. It is possible to obtain documents if one is willing to pay (fees and bribes) but widespread fraud also frustrates this process. Court infrastructure (buildings, equipment) is often in poor condition, leading to poor storage and access to records.
[3] DFAT Country Information Report Bangladesh November 2022 page 35.
In the case of the applicant and domestic violence there really is no effective protection provided.[4]
DFAT assesses that most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community. NGO services and shelters for victims of domestic violence exist but are inadequate; there is not enough coverage for the sheer number of women who experience violence. Police services are inadequate to protect victims of violence and cultural norms prevent women from seeking help or safety even if it were available.
[4] DFAT Country Information Report Bangladesh November 2022 page 35.
Under s5LA(2) a state, party or organisation is taken to be able to offer protection against persecution where the person can access the protection, that protection is durable and there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system. All of these elements must be satisfied, however in the case of the applicant given the ineffectiveness and corruption of the police and the courts the Tribunal has concluded that the applicant would not be afforded effective protection upon return to Bangladesh.
The Tribunal has considered the issue of relocation, that is can the applicant relocate outside of Dhaka or her home village to avoid the harm she fears. [5]
DFAT assesses that women without access to family or other support networks are likely to face greater difficulties in relocating than men, particularly if they are poor, single or have suffered gender-based violence.
[5] DFAT Country Information Report Bangladesh November 2022 page 36.
It is clear from country information that women in Bangladesh are harassed and violence against them is rife throughout Bangladesh. If the applicant was to return, she would be a single woman without any structures available. She would be shamed for marrying her uncle, leaving him and her extended family would not treat her well. Given that the applicant would be a single woman without support from any family and given the prevailing country information on gender-based violence and harassment there is no location within Bangladesh that the applicant can move.
The Tribunal has considered that the applicant faces a real chance of serious harm arising from her membership of a particular group single women who have been the victims of domestic violence.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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 4330

22 August 2024

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