2101204 (Refugee)

Case •

[2024] AATA 3910

•

20 June 2024

2101204 (Refugee) [2024] AATA 3910 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Kah (MARN: 9256535)

CASE NUMBER:  2101204

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:L Symons

DATE:20 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 June 2024 at 05:32pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – religion – Muslim convert to Christianity – disowned by family – physical assault – employment – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 424AA, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2020 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, arrived in Australia [in] January 2017 as the holder of a Student (Class TU) (Subclass 500) visa. This visa ceased on 18 October 2018.  

  3. On 6 February 2018, the applicant applied to the Department of Immigration (the Department) for a Protection (Class XA) (Subclass 866) visa. On 20 February 2018, he was granted an associated Bridging visa. On 18 January 2021, the Department refused to grant him the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 3 February 2021, he applied to the Tribunal for a review of that decision.

  4. The applicant appeared before the Tribunal on 27 October 2023 to give evidence and present arguments. 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 by his legal representative, Mr Craig Dengate, who attended the hearing.

  6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CRITERIA FOR A PROTECTION VISA

  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, 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.

  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 because the person is a refugee.

  9. 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).

  10. 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.

  11. 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

  12. 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 AND FINDINGS

  13. The applicant’s claims in his Statement of Claims attached to his application for a Protection visa are summarised as follows:

    ·He was born on [date] at [City 1] in Rangpur in Bangladesh. He is a citizen of Bangladesh.

    ·He is a Christian who has converted from Islam.

    ·He was born into a practising Muslim family and practised Islam from a young age. However, as he grew older he became an atheist and subsequently an agnostic. He hid his thoughts and continued to practice Islam.

    ·He came to Australia in early January 2017 to study a [Course 1] degree at [University 1]. He arrived in [City 2] and moved to Sydney four months later.

    ·Through his university he met a Christian, [Ms A], who was from [Country 1] and had converted from Buddhism. She invited him to attend her Church. She introduced him to the Pastor who introduced him to Jesus Christ. She returned to [Country 1] and he felt weird going to Church without her. He just concentrated on his studies.

    ·In November 2017, he met [Mr A] at his workplace who was a convert to Christianity. He introduced him to a Bengali pastor named [Pastor A]. [Pastor A] then introduced him to [Church 1] in [location 1], NSW and to [Pastor B]. [Pastor B] helped him to learn about the Bible. He now attends public worship on Sunday mornings and Bible studies with other people.

    ·His supervisor for his [Course 1] degree resigned and the university organised a new supervisor for him. He was not confidant that he could proceed without his original supervisor. He contacted his father and told him that he may have to return to Bangladesh.

    ·He told his father that he was going to Church and would not practise Islam if he returns to Bangladesh. His father cursed him and they had an argument. He told him that if he had converted to Christianity he would be dead to him and have no place in his home. Without his father’s financial support, he was not able to bear the financial cost of study in Australia.  

    ·As a Christian, he cannot return to pretending to be a Muslim. If he returns to Bangladesh as a Christian, his family will disown him. The Muslim community will be harsh. He will face discrimination and harassment and will have trouble finding work. He will be attacked and eventually likely be killed. He has no home, no family and difficulty finding work. Bangladesh is dangerous for a Christian and even more so as a convert from Islam. He will be in constant danger.

    ·There is nowhere in Bangladesh where he will be safe. The authorities are either too scared or complicit and will not provide him with protection or justice.

  14. In his application for a Protection visa, the applicant made the following additional claims:

    ·He will face violence and persecution from the Sunni Muslim community, ISIS, the Bangladesh Islami Chhatrashibir (known as Shibir) and the Bangladesh Jamaat-e-Islami group.

    ·There are a lot of religious killings in Bangladesh. Most people agree with the killings and believe that people like him deserve to be killed. He expects to be shunned, excluded, attacked physically and verbally and killed.

    ·His father considers that he has brought shame to his family and will not help him. His family has abandoned him.

    ·He will not be accepted in the community and will not be able to find a job. The Islamic community will attack him physically and verbally and no one will protect him.  

  15. The applicant provided the Department with copies of the bio data page of his Bangladeshi passport issued [in] 2014 and expired [in] 2019, his Statutory Declaration on character dated 10 February 2018, his academic transcript issued by the Board of Intermediate and Secondary Education, Dhaka dated [date], an eMedical referral letter dated [in] September 2016, a Bangladeshi Police record dated [in] 2014, his Bangladeshi National ID card issued [in] 2015, his Bangladeshi Birth Certificate issued [in] 2007, his [University 1] Student ID card issued [in] April 2017 and expired [in] July 2020, an Offer of Employment from [Employer 1] dated 8 January 2018, his academic transcript issued by the Board of Intermediate and Secondary Education, Dhaka, dated [date], a [Qualification 1] degree from [University 2] issued on [date], an employment contract from [Employer 2] dated 10 January 2018, an Australian National Police Certificate dated [in] February 2018, a Payslip, an Individual Income Tax Return for the financial year ending 30 June 2017, his Certificate of Baptism issued by [Denomination 1] issued [in] June 2018, a letter of support from [Mr B], a letter of support from [Mr A], a letter of support from [Pastor A] from [Denomination 1] dated 20 April 2019, a letter of support from [Pastor C] from [Denomination 1] dated 20 April 2019, a booklet titled, “[Deleted]” from [Denomination 1] containing his Baptism Certificate dated [in] June 2018, a letter of support from [Pastor B] from [Denomination 1] dated 20 April 2019 and five links to country information on Bangladesh.

  16. The applicant lodged with the Department a written submission dated 3 May 2019 from his legal representative, Mr Michael Kah.

  17. On 6 May 2019, the applicant lodged a written statement from him dated 22 April 2019. In his written statement, he corrected dates provided in his application for a Protection visa and his Statutory Declaration dated 4 December 2018 in support of his application for a Bridging E visa. He made a new claim that he was baptised [in] June 2018 at [Church 1]. He reiterated the reasons why he fears returning to Bangladesh.

  18. The applicant attended an interview with the Department on 6 January 2021. He advised the Department that an interpreter was not required and the interview was conducted in English. During the interview, he reiterated his written claims. He also made new claims that he will be unemployable and unable to find work in Bangladesh due to his religion. The delegate found that he is not a person in respect of whom Australia has protection obligations. His application for a Protection visa was refused on 18 January 2021.

  19. The applicant has filed with the Tribunal copies of the Department’s Decision Record dated 18 January 2021, a booklet titled, “[Deleted]” from [Denomination 1] containing his Baptism Certificate dated [in] June 2018, email correspondence between him and [University 1] from 2018, a letter of support from [Person A] dated 16 October 2023, a letter of support from [Person B] dated 11 October 2023, a letter of support from [Person C] dated 13 December 2023 (sic), a letter of support from [Doctor A] dated 12 October 2023, a letter of support from [Doctor B] dated 12 October 2023, a letter of support from [Doctor C] dated 18 October 2023, a letter of support from [Person D] dated 15 October 2023, an undated letter of support from [Person E], an undated letter of support from [Person F], a letter of support from [Person G] dated 12 October 2023, a letter of support from [Person H] dated 12 October 2023, a letter of support from [Person I] dated 18 October 2023, a letter of support from [Person J] dated 16 October 2023, a letter of support from [Person K] dated 14 October 2023, a letter of support from [Person L] dated 13 October 2023, a letter of support from [Person M], dated 16 October 2023, a statement of employment from [a named] Manager at [Employer 3] dated 11 October 2023, an employment agreement from [Employer 4] dated 5 June 2023, a tax invoice issued by [Agency 1] dated 8 December 2022, a candidate result profile issued by [Agency 1] dated 18 October 2022, a [Qualification 1] degree from [University 2] issued on [date], a Certificate of full Registration as [an occupation 1] issued by [Authority 1] dated [date], a [Certificate] issued by [Authority 1] dated 2 December 2019, a Testimonial for a [Qualification 1] degree issued by [a named] College issued on [date], a confirmation of enrolment from [another college] dated 13 July 2023 and [certificates] issued by Linkedin Learning dated [in] 2023.

  20. The applicant filed with the Tribunal a statement dated 19 October 2023 in which he reiterated the reasons why he fears returning to Bangladesh and provided details about his life in Australia.

  21. The applicant filed with the Tribunal a legal submission dated 20 October 2023 from his legal representative, Mr Michael Kah.

    Receiving Country

  22. The applicant claims to be a citizen of Bangladesh and has provided a copy of his Bengali passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Bangladesh. The Tribunal finds that Bangladesh is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

  23. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country than his country of nationality.

    Assessment of Claims

  24. The applicant gave evidence that he prepared his application for a Protection visa after speaking to a few people from the Church. The information in his visa application is true and correct and he was satisfied that his visa application was accurate and complete. There had been no changes in his circumstances since he filed his application for a Protection visa.

  25. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, why he left Bangladesh, the process of his conversion to Christianity, his practice of Christianity in Australia and why he now fears returning to Bangladesh. The Tribunal found aspects of his evidence to be inconsistent, implausible and unconvincing. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

  26. First, in his Statement of Claims, the applicant claimed that he was born into a Muslim family and practised Islam from a young age. As he grew older he became an atheist and subsequently an agnostic. He came to Australia in early January 2017 to study a [Course 1] at [University 1]. At university he met a [Country 1] woman named [Ms A] who had converted from Buddhism to Christianity. She invited him to attend her Church, introduced him to the Pastor who introduced him to Jesus Christ. She returned to [Country 1] and he felt weird going to Church without her.

  27. In his Statement of Claims, the applicant claimed that in November 2017 he met [Mr A] at his workplace who was a convert to Christianity. He introduced him to a Bengali pastor named [Pastor A] who in turn introduced him to [Pastor B]. [Pastor B] helped him to learn about the Bible. He now attends the [Church 1] in [location 1] to worship on Sunday and participates in Bible studies with other people. He is a Christian who has converted from Islam.  

  28. The applicant subsequently filed with the Department a statement dated 22 April 2019 in which he sought to correct errors he had made in documents he filed with the Department. He stated that [Ms A] departed Australia in June 2017. The Church she attended in Australia was [Church 2]. He met [Mr A] in April 2017 when they worked together and they started having discussions about Christianity in September 2017. He was baptised at [Church 1] [in] June 2018. He lives in accommodation provided by this Church, attends Church and participates in Bible studies.

  29. During the hearing, the Tribunal discussed these claims with the applicant. Give evidence that he belonged to a Muslim family. His father taught him how to pray when he was young. After school, he would go to the mosque to learn Arabic. He learned about Islam at school, went to the mosque for prayers on Fridays, fasted during Ramadan and celebrated Eid. After he completed school, he went to university where he completed a [Qualification 1] in August 2014. He was close to his mother and when she became sick he would go to the hospital with his medical textbooks, sit outside ICU, study and pray. He prayed to Allah to heal his mother. After his mother died, he felt that Allah had not helped her and he stopped praying. He did not practise as a Muslim thereafter. He stopped believing in God and became an atheist in 2013 or 2014. He subsequently became an agnostic.

  30. The applicant gave evidence that he came to Australia ([in] January 2017) to study a [Course 1] at the [University 1] in [City 2]. He moved to Sydney in mid-2017.  At university, he met a woman ([Ms A]) who used to go to Church on campus and to another Church in [Suburb 1]. He was reluctant but went to Church with her and spent time with her at Church. He went to Church to impress her and attended Church on four or five occasions. She left Australia at the end of 2017. He thereafter stopped going to Church as there was no reason for him to go to Church.

  31. The applicant stated that at work he had a colleague named [Mr A] who was from [Country 2]. He had converted from Buddhism to Christianity. He introduced him to a Bengali pastor named [Pastor A] who introduced him to [Pastor B]. [Pastor B] had been [an occupation 1] and then became a pastor. He had craved for a father like [Pastor B]. He was loving, caring and would listen. He talked about life and different perspectives. He had never had that in his life. After he met [Pastor B], he started attending Church services every Sunday at [Church 1] and participated in Bible studies which was led by [Pastor B] on weekdays. He was baptised in 2018. He could not recall the date of his baptism.

  32. The applicant stated that he lived in accommodation provided by [Church 1] until 2019. He stopped attending Bible study sessions in early 2020 because of the restrictions imposed during the Covid-19 pandemic. He also stopped attending Church at that time. When asked whether he resumed attending Church after the restrictions were removed, he responded that he did not as he was afraid of getting Covid and did not feel comfortable. He attended online sessions.

  33. The applicant stated that the Church community is very supportive. People are friendly. They greet each other and talk to each other. He enjoyed the friendship, love and care of these people. He did not find this to be the same at mosques. People who were rich, businessmen or had higher level jobs would sit in the front and people who were poor had to sit at the back. He did not like that. Islam talks about equality but people do not practise that. When he was an atheist and an agnostic, he felt a hollow space in his heart. After he found Jesus Christ, he no longer had the hollow space. For him, Jesus Christ is God and Christianity is important to him.

  1. The applicant’s evidence indicates that when he first attended Church in Australia he had no interest in Christianity and was reluctantly attending Church with [Ms A] so that he could impress her and spend time with her. He stopped going to Church at the end of 2017 after she departed Australia because he had no reason to do so. His evidence also indicates that, despite his craving to have a father like [Pastor B] and enjoying the conversations he had with him, he did not resume Bible studies with him after the Covid-19 restrictions were lifted.

  2. More importantly, despite his evidence that he found the Church community to be very supportive and enjoyed the friendships, love and care he felt from the people at the Church and the encouragement given to him by the Church leaders to maintain “fellowship with God’s people” (as evidenced in their letters of support), the applicant did not resume attending Church in person every Sunday after the Covid-19 restrictions were lifted. Instead, he claims that he attended online sessions where he would not have had direct contact with the people in the Church congregation including the Church leaders. The Tribunal finds his explanation for why he did not resume his attendance in person at Church and at Bible study sessions to be unconvincing. The risks of catching Covid-19 would apply when he used public transport or attended his workplace as well but he has not claimed that he has stopped working since the Covid-19 pandemic. If he was worried about catching Covid-19, he had the option to get vaccinated and to wear a mask.

  3. These issues raise doubts about the applicant’s level of commitment to the practise of his faith, the importance of Christianity to him and whether he is a genuine convert to Christianity.

  4. Second, the applicant gave evidence that, at the end of 2017, he started attending Bible studies with other people. [Pastor B] led the sessions and they were held at the Church or at his [business]. He attended these Bible study sessions from the end of 2017 until Covid-19 restrictions were imposed in 2019. He would attend these sessions often, sometimes every day, after work. When asked whether he was more interested in learning from [Pastor B] or learning about the Bible, he responded learning the Bible. [Ms A] gave him a Bible before she left Australia. He received a second Bible from the Church. When asked whether he had any difficulty reading it in English, he responded no.

  5. The applicant gave evidence that he has read most of the Bible. He started reading it like a novel and found it interesting to learn the stories. When asked what his favourite story was from the New Testament, he responded that there is one thing he likes. When he has time off, he reads it. It is in Jeremiah. He quoted “for I know what the Lord declares for your welfare, not for evil to give you hope and future.” It is in Jeremiah 44:29. (This quote is not consistent with Jeremiah 44:29 in the King James version of the Bible[1] or the New International version of the Bible[2].)

    [1] Jeremiah 44:29 – King James version of the Bible. (JEREMIAH 44:29 KJV "And this shall be a sign unto you, saith the LORD, that I will punish you in this place, that ye may..." (kingjamesbibleonline.org))

    [2] Jeremiah 44:29 – New International version of the Bible. (Jeremiah 44:29 NIV - “‘This will be the sign to you that - Bible Gateway

  6. When the Tribunal reminded the applicant that it was talking about the New Testament, he referred to Noah. When asked whether the story of Noah was in the New Testament, he responded that Jeremiah is in the Old Testament and Noah is in the New Testament. When asked who wrote the New Testament, he responded that he was not sure.

  7. The Tribunal does not claim to be an expert on the Bible or Christianity nor does it expect the applicant to have a thorough knowledge of the Bible. The Tribunal finds it interesting that he voluntarily quoted a verse from the Bible, which he stated he likes and reads when he has time off, and then either provided the incorrect reference or incorrectly quoted the verse. In any event, the Tribunal places no weight on this. However, in view of his evidence that he has two copies of the Bible, has read most of it and has attended Bible study sessions on weekdays, sometimes everyday after work, from the end of 2017 until the Covid-19 restrictions in 2019,[3] the Tribunal expects him to have some basic knowledge of the Bible such as who wrote the New Testament and that the story of Noah is from the Old Testament.

    [3] Covid-19 restrictions on gatherings were not imposed in NSW until March 2020. (COVID-19: a chronology of state and territory government announcements (up until 30 June 2020) – Parliament of Australia (aph.gov.au))

  8. The Tribunal raised as an issue with the applicant the fact that his knowledge of the Bible was not consistent with his claims that he has studied it for years. He responded that the Bible is complicated to remember. He could tell the Tribunal about the service. He is doing some other studies. That is why he could not answer. The Tribunal accepts that the Bible is complicated. However, if he spent so many years studying it and if it was so important to him that he would attend Bible study sessions during the week after work and sometimes attend everyday as he claims, the Tribunal would expect him to remember some basic information about the Bible. He is tertiary educated, has undertaken many courses in Australia including commencing a Master’s degree in Australia and has clearly demonstrated the ability to acquire and retain information.   

  9. This raises further doubts about whether the applicant is a genuine convert to Christianity.

  10. Third, the applicant provided the Department with a number of letters of support. This included an undated letter from [Mr B], an undated letter from [Mr A], a letter dated 20 April 2019 [Pastor A] from [Denomination 1], a letter dated 20 April 2019 from [Pastor C] from [Denomination 1] and a letter dated 20 April 2019 [Pastor B] from [Denomination 1].

  11. In his letter, [Mr B] stated that he met the applicant at [Church 2] at [Suburb 1] in April 2017. He was introduced to him by a Church friend named [Ms A] who was a Christian convert from [Country 1]. He was curious and asked many questions about Christianity. He tried to help him and suggested he attend the Church more often. He attended the Church a few times with his friend [Ms A]. After she left Australia, he stopped attending the Church. He was happy to hear that he was baptised in June 2018, wished him God’s blessings and prayed that he grew in spiritual matters by regularly reading the Bible and worshipping with fellow Christians.

  12. In his letter, [Mr A] stated that he is [an occupation 1] by profession and met the applicant at his workplace where he was working as [an occupation 2]. He engaged in conversations with him about Christianity and he informed him that he was a convert to Christianity. He told him of his desire to know more about Christianity. He told him that in the past a friend from [Country 1] introduced him to a Christian Church but she left Australia and he stopped going to Church as he did not know anyone. He mentioned that he knew a Bengali pastor and would like to introduce the two of them. He agreed but wanted it kept confidential for fear of religious persecution in his country.

  13. [Mr A] stated that he gave the applicant’s contact number to [Pastor A] from the [Church 1]. They were introduced in September 2017. He was informed that he attended the Church and participated in Bible studies. He was pleased to hear that he had been baptised in June 2018, wished him God’s blessings and prayed that he grew in spiritual matters by regularly reading the Bible and worshipping with fellow Christians.

  14. In his letter, [Pastor A] stated that he had known the applicant for one and a half years. He was introduced to him by [Mr A]. He was given his contact details and contacted him and invited him to meet him at the Church. They are both from Dhaka in Bangladesh and built up a strong friendship. He introduced him to [Pastor B]. He went to him and [Pastor B] to participate in Bible studies and they commenced Bible studies and discussions about Christianity and Islam. He shared how confused and pressured he was in Bangladesh as a Muslim. As he is a thoughtful person, they engaged in many conversations. He commenced attending public worship at [Church 1] regularly and was baptised in June 2018.

  15. [Pastor A] stated that from his experience, Bangladesh is a nightmare for converted Christians. If he returns to Bangladesh, he will face death threats. Minorities like converted Christians frequently get tortured and abused by the Muslim community and family in Bangladesh. He will face discrimination and harassment, will have trouble finding work, will be attacked and eventually likely be killed. He will have no home, family and no work. Every year Muslim organisations murder atheists, converted Christians, Hindus and there have not been any investigations or justice given.

  16. [Pastor A] stated that the applicant had lived in Church accommodation since December 2017. He continues to grow in his spiritual understanding and maturity. He is encouraged to grow in spiritual matters by reading the Bible and fellowship with God’s people.

  17. In his letter, [Pastor C], stated that he had known the applicant for one and a half years. He was introduced to him by [Pastor B] and [Pastor A]. He was introduced to their Church by [Pastor A]. He started attending their Church regularly from September 2017 and commenced group Bible studies and discussions with them. He moved to their Church accommodation in December 2017. He baptised him in June 2018. He continues to grow in his spiritual growth and spiritual maturity.

  18. In his letter, [Pastor B] stated that the applicant arrived in Sydney in April 2017 and was introduced to [Pastor A], a Bengali Pastor in their congregation. He met him soon after and they developed a strong friendship. He had trained as [an occupation 1] in Bangladesh and he had also been [an occupation 1] in a previous life. They commenced Bible studies and discussions about Christianity and Islam. He had lots of questions and, being a thoughtful person, engaged in conversations at length and depth. He commenced attending public worship at [Church 1] in the morning and later in the evening at [location 1] due to his work schedule. Sunday was a catch up on sleep.

  19. [Pastor B] stated that, in light of the applicant’s Islamic background, they do not baptise people straight away but over a period of time. He was baptised in June 2018. He lived in accommodation provided by the Church since December 2017. He has interacted with him over the past two years. Like any person coming from an Islamic background, there are things that take time to work through as how to love God and love our neighbour, He continues to grow in his spiritual understanding and maturity and that is a lifetime of challenges. He is encouraged to grow in spiritual matters by reading the Bible and fellowship with God's people.

  20. The applicant also provided the Department with a Certificate of Baptism issued by [Denomination 1] [in] June 2018 and a [titled booklet] which the Tribunal has considered.

  21. Some of the dates referred to in these letters are not consistent with the dates provided by the applicant. The use of identical formatting and phrases in the letters from the Church leaders raises questions about whether the authors prepared these letters independently. This evidence is from 2019 and is now several years old. The applicant did not provide the Tribunal with any recent independent evidence in relation to whether he is currently a practising Christian. Unfortunately, as none of the authors of these letters, particularly those from the Church, were called to give evidence at the hearing the Tribunal was unable to discuss these issues with them.

  22. The Tribunal raises these issues with the applicant. He responded that he did not submit anything recent or ask them to attend the hearing because he is not as regular as before. He mostly attends online. He did not feel comfortable. That is why he did not get a certificate. His explanation does not alleviate the Tribunal’s concerns. It raises further concerns for the Tribunal in relation to his motivation for attending Church and Bible study sessions and whether he is a genuine Christian convert.

  23. The Tribunal finds it significant that [Pastor B] was not a witness at the hearing particularly in view of his evidence that he and the applicant had developed a strong friendship and he would have been able to give evidence of the applicant’s journey towards conversion to Christianity and his baptism. The Tribunal also finds it significant that [Pastor A] was not a witness at the hearing particularly as he was also from Dhaka in Bangladesh and had expressed his opinion of what happens to religious minorities in Bangladesh. This leads the Tribunal to the conclusion that the applicant did not obtain updated letters from the leaders of the Church or arrange for them to give evidence at the hearing because they would not have supported his claims that he is a genuine convert to Christianity and continues to practise his faith.

  24. Fourth, in his Statement of Claims, the applicant claimed that his supervisor for his [Course 1] degree resigned and the university organised a new supervisor for him. He was not confident that he could proceed without his original supervisor. He contacted his father and told him that he may have to return to Bangladesh. He told his father that he was going to Church and would not practise Islam if he returns to Bangladesh. His father cursed him and they had an argument. He told him that if he had converted to Christianity he would be dead to him and have no place in his home. Without his father’s financial support, he was not able to bear the financial cost of study in Australia.

  25. During the hearing, the Tribunal discussed these claims with the applicant. He gave evidence that when his supervising professor at university resigned he had “a few weeks of struggle” between him and the university. When they finalised a date and found a supervisor, he decided to withdraw from the course. He wanted to study something else but changing courses would have been expensive or he had to return to Bangladesh. He did not want to return to Bangladesh and practise Islam again.

  26. The applicant stated that he then contacted his father, told him what had happened and that he planned to return to Bangladesh. He told him that he had converted to Christianity. His father was very upset. He said people had brainwashed him, he was an idiot and had always been an idiot. He should stop saying this to him or anyone else. If he wanted to return to Bangladesh, he had to convert back to Islam. If he did not stop this, he would never be able to go to heaven and he would disown him and he would be dead to him. If he went near him or his family, something bad would happen to him. He then informed his sister that he is a Christian.

  27. The applicant’s conduct is not consistent with this evidence. The records of the Department indicate that he was granted a Student visa on 16 December 2016 that was valid until 18 October 2018. He arrived in Australia [in] January 2017. The records of the Department of Education indicate that he was enrolled in an English for Academic Purposes course from 21 November 2016 to 17 February 2017 and a [Course 1] from 27 February 2017 to 27 February 2019. He did not commence those courses and his enrolment in those courses was cancelled on 28 November 2016.

  28. The records of the Department of Education indicate that the applicant then enrolled in an English for Academic Purposes course from 18 April 2017 to 23 June 2017 and a [Course 1] degree from 7 July 2017 to 7 July 2019. He commenced and completed the English for Academic Purposes course. His enrolment in the [Course 1] degree was cancelled on 21 February 2018 after he notified the university that he was ceasing his studies. His Student visa was subsequently cancelled on 18 October 2018. At the time he notified the University that he was ceasing his studies, he was working 67.65 hours a fortnight which was almost full time work.

  29. The applicant provided the Tribunal with a thread of email correspondence between him and the [University 1] which indicates that the university had appointed [Professor B] to be his supervisor. She subsequently resigned and the university appointed [Dr D] to be his supervisor. He then decided that he did not want to study a [Course 1] degree anymore and on 16 February 2018 he sent an email to the university advising the university that he wished to withdraw from his course. The university subsequently refunded his fees to him. (His legal representative submitted that the refund of fees applied from the time [Professor B] resigned). 

  30. The records of the Department indicate that the applicant lodged an online application for a Protection visa at 11.10am on 16 February 2023. He then sent an email to [University 1] at 8.59pm on 16 February 2018 indicating that he wished to withdraw from the [Course 1] degree he was enrolled in.

  31. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his conduct and this information may lead the Tribunal to the conclusion that he decided that he did not want to study the course he was enrolled in, he was more interested in working full time and he did not want to return to Bangladesh so he formulated a plan on how he could remain in Australia and work here full time without having to study. He then lodged an application for a Protection visa before informing the university that he was withdrawing from his course. The Tribunal noted that it may come to the conclusion that he had no intention of returning to Bangladesh and therefore may not accept that he told his father that he was returning to Bangladesh, was a Christian convert, would not be practising Islam when he returned to Bangladesh and had been disowned by his family.

  32. The Tribunal also put to the applicant information that condition 8105 on his Student visa restricted the number of hours he could work to 48 hours a fortnight and he had worked in excess of that. A closer scrutiny of condition 8105 indicates that this restriction does not apply to Student visas granted in relation to Master’s degrees by research or doctoral degrees if the holder has commenced the Master’s degree by research or doctoral degree.

  33. The applicant responded that his primary supervisor was [Professor B]. [Dr D] was an external supervisor from a different university. The person they thought could initially become his supervisor had no research experience. Being a researcher, it was important to complete research under the supervisor’s name. Completing a 2 year degree with a supervisor without a research background would not have helped him. He understood that and asked the dean to send him to a different university to do his research. He had the intention to complete his studies but for these reasons could not. His withdrawal was his only way to complete this. He did not want to do his Master’s degree with that supervisor. He had good intentions to study. Even if he stays in Australia he will study a different subject.

  34. The applicant stated that he was exchanging emails with the dean for a few days or weeks about what was going on about his research. He lodged his application for a Protection visa in the morning and withdrew (from the university) in the evening. He knew that lodging an application for a Protection visa was a long process and he was worried about how long it will take so he decided to apply for a Protection visa first. He had already made up his mind that it needed to be done first. It was not a plan. Everything happened. He did not want his supervisor to resign from the university. He did not want to withdraw but had to because there was no supervisor.

  1. The applicant stated that he wanted to go back to Bangladesh but could not go back to Bangladesh, then tell his father and have nowhere else to go. That would have been a foolish decision and that is why he told him beforehand. His intention was to sort it out before he went to Bangladesh. But it did not happen. In Australia, he was working as a casual and was probably working the hours. His wages were low and he did not have the savings to go to university. Fees for international students are more expensive than for a domestic student. His salary from work was not enough. The money the university refunded to him was sent back to his father. He did not take a single penny of that money. After that, he did not have anywhere to go and did not know what to do. If that happened at this age, he would have thought differently. Back then he was all by himself, he had recently come from Bangladesh, did not know anyone, he was working as [an occupation 2] and did not know what to do. The only support he had was from his family. He was lost. It was not pre-planned.

  2. The Tribunal reminded the applicant of his earlier evidence that [Pastor B] had become like a surrogate father to him and he could have talked to him and got advice from him. He responded that he could not ask him for financial help or live in his house. He is a man and has to feed himself, work and make a comfortable environment for himself. He could not get help from him in relation to work or career.

  3. The Tribunal noted that if the applicant did not understand academia or needed help to get a better paying job, he had someone there who could have helped him. He responded that he could have gone to an education agent to change his university. To change university, he needed money and did not have that money. The $7,000.00 or $8,000.00 refund that he received was sent back to his father. It was against his self-respect and he did not want to keep the money. Even if he kept the money, it was insufficient to get into another university. If it was possible, he would have done it and studied something else.

  4. The applicant stated that he did a search on Google and thought that there were no restrictions on the hours of work for students doing a Ph D or Master of Research. It was a misunderstanding. It was not his intention to work full time. He never enjoyed working as [an occupation 2] when he was a qualified [occupation 1]. He did not come to Australia to make money. He believed in personal development.

  5. The applicant’s legal representative submitted that the issue about the supervisor did not just occur on 16 February 2018 and had been an ongoing problem. He also stated that the refund of the fees was not the entire fees but a slightly lesser amount.

  6. The Tribunal accepts that the resignation of [Professor B] was not something that the applicant could have foreseen nor was it within his control. It was within his control whether or not he continued his studies with [Dr D] as his supervisor. He chose not to do so and gave an explanation for why he made that decision. He had the option to seek advice from an education agent in relation to alternate courses available to him and to seek advice from a migration agent or lawyer in relation to the impact his decision would have on his Student visa.

  7. Aspects of the applicant’s evidence to the Tribunal are not consistent with his previous evidence and other evidence provided to the Tribunal. His evidence that he wanted to go back to Bangladesh but could not go back is not consistent with his earlier evidence that he did not want to go back to Bangladesh. His evidence that, at the time he made the decision to withdraw from his studies, he was all by himself, had recently come from Bangladesh, did not know anyone, was working as [an occupation 2], did not know what to do and the only support he had was from his family is not consistent with the numerous letters of support and character references he provided the Tribunal, the evidence of [Pastor B] that they had a strong friendship and his evidence that he had discussed lodging an application for a Protection visa with a few members of his Church congregation.

  8. The Tribunal finds it implausible that the applicant would have told his father that he was a Christian and going to Church before he had been baptised and accepted into the Church as a Christian. His Certificate of Baptism indicates that he was baptised [in] June 2018. This was nearly four months after he withdrew from his course. It is also implausible that he would have told his father that he would not be a practising Muslim if he returned to Bangladesh when he had not been a practising Muslim since his mother died (in 2010) or since 2013 or 2014, had been an atheist since then and thereafter an agnostic by the time he left Bangladesh in 2017. His evidence that he did not want to return to Bangladesh and practice Islam again is also not consistent with his evidence that he had not practised Islam since 2010 or 2013/2014. The Tribunal is not convinced that he informed his father, sister or anyone else in Bangladesh that he is a Christian.

  9. Fifth, the Tribunal raised as an issue with the applicant the provisions of s.5J(6) of the Act and its concerns that his attendance at Church and involvement in Church related activities were for the purpose of strengthening his claims to be a refugee. The Tribunal informed him that this provision did not apply to complementary protection. He responded that he was enrolled at university at the time he did Bible studies. He had no intention of applying for protection when he went to Church with [Ms A] and met [Pastor B]. It happened when he told his father that he was not going back to Bangladesh. He did not know that his supervisor was going to resign. She did not have personal contact with him. It was not his fault that the university did not have a supervisor for him. When the Tribunal reminded him of his earlier evidence that he had weekly meetings with his supervisor, he responded that she did not tell him. She may have had an issue with the dean and resigned.  

  10. The Tribunal accepts that the applicant’s attendance at [Ms A’s] Church in [Suburb 1] was not for the purposes of strengthening his claims to be a refugee as his own evidence is that he did so reluctantly to impress her and to spend time with her. However, his subsequent attendance at [Church 1] and at Bible study sessions enabled him to obtain accommodation provided by the Church and to then apply for a Protection visa with advice from members of the Church congregation.

  11. The applicant’s email dated 16 February 2018 to [University 1] indicates that he lost “half” of his interest in doing the course after [Professor B] resigned. His evidence is that he then had weeks of discussions with the dean about a replacement supervisor. He was thereafter assigned [Dr D] as his supervisor and then decided to withdraw from the course. He had clearly lost interest in continuing his studies for a considerable period of time before he applied for a Protection visa and then withdrew from his course. His evidence that he applied for a Protection visa first before he withdrew from his course was because he was aware of how long it took to prepare the visa application, indicates that he had already obtained information about Protection visas, was aware of the process, made a plan and implemented it.  

    Other considerations

  12. The applicant lodged a large volume of documents with the Tribunal. This included documents in relation to his tertiary and professional qualifications in Bangladesh, documents in relation to short courses completed in Australia, documents in relation to his employment in Australia, an invoice dated 8 December 2022 from [Agency 1], examination results dated [in] October 2022 from [Agency 1] and seventeen character references which the Tribunal has considered.  

  13. The Tribunal has had regard to the oral submissions and written submissions dated 3 May 2019 (provided to the Department) and 20 October 2023 (provided to the Tribunal) from the applicant’s legal representative. The written submission dated 3 May 2019 set out the applicant’s biographical details, history, relevant law and relevant country information. These submissions are based on the applicant’s conversion from Islam to Christianity, his fear that if he returns to Bangladesh he will be denied the right to practice his Christian faith and face serious harm from Muslim extremists or will face isolation, exclusion, poverty, destitution and difficulty earning a living because of his conversion and faith.

  14. The written submissions dated 20 October 2023 refer to the applicant’s claims, his evidence, other supporting evidence and updated country information. The submissions centre on his conversion to Christianity, the letters supporting this conversion and the fact that he was provided accommodation by the Church as he was a parishioner. The submissions refer to the email correspondence between the applicant and the [University 1] and submit that he withdrew from the course for a legitimate reason and that his withdrawal from his course is irrelevant for the purpose of assessing whether he is a refugee.

  15. The written submissions dated 20 October 2023 refer to s.5J(3) of the Act and submitted that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Bangladesh as he cannot hide his Christianity and his father and other members of his family are already aware of his conversion. The submissions also refer to country information that shows that Christians in Bangladesh make up a small minority and referred to country information from DFAT particularly in relation to the risk being higher for converts to support the claims. The submissions conclude that the applicant meets the refugee criterion and, in the alternative, the complementary protection criterion.

  16. The written submissions dated 20 October 2023 conclude by requesting, in the alternative, that the Tribunal refer the applicant to the Minister for consideration under s.417 of the Act. Lengthy submissions were made with reference to the applicant’s employment history in Australia, his skills as [an occupation 1] and the character references provided. The Tribunal notes that the supporting evidence provided indicates that he has not passed the examination he undertook at [Agency 1] and has not worked as [an occupation 1] in Australia.  

  17. In oral submissions to the Tribunal, the applicant’s legal representative submitted that the applicant had difficulty recalling dates and time frames and this should not reflect on his credibility. His evidence was credible. He acknowledged incidents that would affect his credibility such as not attending Church physically and this was a sign of his integrity and honesty. He has come from a Muslim family, has converted to Christianity and his family are aware of that. DFAT also stated that the risk is higher for converts particular from Islamic families and can be subject to violence. There are high levels of corruption in the Police. They are prepared to turn a blind eye when violence occurs. That would leave the applicant at risk. His ability to self-identify and self-determination is an innate quality and should not be something that he has to modify his behaviour to hide. In this day, social media is reckless. It could lead to him being identified by people who are aware in his family. This could lead to his location being given away. Condition 8105 currently allows for a student studying a Ph D by research to work more than 48 hours a fortnight. He could not guarantee that this was the case in 2016.

  18. The Tribunal has considered these submissions carefully. However, they do not overcome the problems in the applicant’s case.

  19. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh, other opensource country information and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Country information

  20. The applicant wrote to the Department and referred to the following five websites. He did not provide hard copies of these documents to the Department.

    ·>

    DFAT reports that:

    According to the 2021 US Department of State International Religious Freedom Report on Bangladesh, 89 per cent of the population is Sunni Muslim and 10 per cent is Hindu. The remaining population is mostly Christian or Buddhist. Religious minorities are found throughout the country but especially in the Chittagong Hill Tracts among Indigenous People. Bangladesh has a population of over 169,5 million people so that means there are 1 million 695,000 Christians in Bangladesh.

    The ruling Awami League promotes religious pluralism and tolerance. The Constitution affirms Islam as the state religion but provides for religious equality and freedom. In practice, these laws are subject to constitutional provisions about public order and morality….

    There are no laws prohibiting religious conversion, but the practice is nonetheless risky because families and communities might violently object. The US Department of State International Religious Freedom Report notes NGO claims that physical violence, harassment and social isolation are threats to Christians who have converted from Islam.

    DFAT is aware of claims of rising influence of Islamist groups and moves by major political groups away from the country’s secularist constitution. These claims do not broadly reflect the reality on the ground; there has been no significant change since the last DFAT Country Information Report on Bangladesh.

    Christians are not always readily identifiable by cultural, language or facial traits, but some Indigenous People with distinct facial and cultural characteristics are Christian. According to the 2021 US Department of State Religious Freedom Report, Christians live in communities across the country, with relatively high concentrations in Barishal City, Gournadi in Barishal District, Baniarchar in Gopalganj District and Monipuripara and Christianpara in Dhaka, as well as the cities of Gazipur and Khulna.

    Christians are able to access schools, hospitals and other services provided by their churches. Churches run extensive social welfare, health and education facilities, which are open to non-Christians and often serve the poor. This reputation for care can help reduce social isolation and discrimination against Christians.

    Discrimination against Christians does nonetheless occur occasionally, for example the denial of goods or services or accommodation. The experience of discrimination depends on individual circumstances. Many Christians live in communities together and experience less discrimination as a result.

    Some people convert to Christianity, mostly lower caste Hindus and Indigenous People, who often convert as a group, for example as an entire family or village community. Some experience discrimination and violence following that conversion, and some do not. According to sources, converts do not generally experience discrimination from families and communities – this can be in part due to the fact that conversion often takes place at the community or family level. The potential for family or community discrimination and violence cannot be ruled out; but it would depend on the individual family or community circumstances.

    A potential for violence from anti-Christian Islamist groups exists. The state sometimes provides armed security at churches, especially around sensitive dates like Easter and Christmas. Sources told DFAT that they generally feel safe at church.

    Sources told DFAT that, while Christians mostly worship freely, many keep a low profile to avoid violence. For example, after Friday prayers at local mosques, some Christians try to conduct their church services quietly to avoid attracting attention. 3.60 DFAT assesses that Christians face a moderate risk of societal violence in the form of localised incidents and the possibility of mob violence. Like other minorities, Christians face a risk of sporadic attacks. 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.

  21. The Tribunal discussed this country information with the applicant.

    Findings

  22. Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a reliable or credible witness. The Tribunal accepts that he was born on [date] in Bangladesh. The Tribunal accepts that his mother passed away in approximately 2010. The Tribunal accepts that his father has re-married and has a child of that marriage. The Tribunal accepts he has a sister who is married. The Tribunal accepts that he graduated from [University 2] with a [Qualification 1] in 2014. The Tribunal accepts that he then undertook an internship and thereafter worked as [an occupation 1]. The Tribunal accepts that he travelled to Australia [in] January 2017 as the holder of a Student visa for the purpose of studying a [Course 1] degree at the [University 1] at [City 2]. The Tribunal accepts that he moved to Sydney 4 months after his arrival in [City 2].

  23. The Tribunal accepts that the applicant was born into a Muslim family and practised Islam from a young age. The Tribunal accepts that, when he was at university, his mother became sick and passed away in about 2010. The Tribunal accepts that he was close to his mother and her death had a significant impact on him. The Tribunal accepts that he thereafter became an atheist and stopped practising Islam. The Tribunal accepts that he subsequently became an agnostic and was an agnostic when he came to Australia in 2017.

  24. The Tribunal accepts that after the applicant moved to Sydney he met a [Country 1] woman at university named [Ms A] who was a convert to Christianity. The Tribunal accepts that she invited him to attend her Church at [Suburb 1] and he did so reluctantly because he wanted to spend time with her and to impress her. The Tribunal accepts that he attended her Church a few times but stopped going to Church after she returned to [Country 1] as he had no reason to continue to attend Church.

  25. The Tribunal accepts that the applicant had a colleague at work named [Mr A] who was from [Country 2] and had converted from Buddhism to Christianity. The Tribunal accepts that in about September 2017 he spoke to [Mr A] about Christianity. The Tribunal accepts that [Mr A] introduced him to a Bengali pastor named [Pastor A] who introduced him to [Pastor B]. The Tribunal accepts that [Pastor B] had been [an occupation 1] and then became a pastor. The Tribunal accepts that he formed a friendship with [Pastor B] and then started attending Church services at [Church 1] and participated in Bible studies which was led by [Pastor B] on weeknights. The Tribunal accepts that he was baptised [in] June 2018 at [Church 1].

  26. The Tribunal accepts that the applicant moved into accommodation provided by [Church 1] in December 2017 and lived there until 2019. The Tribunal accepts that he stopped attending Bible study sessions and attending Church in person in early 2020 because of the restrictions imposed during the Covid-19 pandemic. The Tribunal has some doubts that he thereafter attended Church services online but is prepared to give him the benefit of the doubt. The Tribunal accepts that, after the Covid-19 restrictions were removed, he did not resume attending Church services in person or attending Bible study sessions. The Tribunal is not satisfied that he has attended Church services online thereafter. 

  1. The Tribunal accepts that the applicant’s supervisor for his [Course 1] degree, [Professor B], resigned from the [University 1] in 2017 and the replacement supervisor proposed for him was unable to fulfill that role. The Tribunal accepts that [Dr D] was then proposed as his supervisor. The Tribunal accepts that he lost interest in his studies after [Professor B] left and he did not wish to continue his studies with [Dr D] as his supervisor. The Tribunal accepts that on 16 February 2018 he decided to withdraw from his course.

  2. The Tribunal accepts that the applicant did not wish to return to Bangladesh. The Tribunal accepts that he had spoken to members of his Church congregation about Protection visas and obtained information from them. The Tribunal accepts that he decided to lodge an application for a Protection visa on the basis of being a convert to Christianity. The Tribunal accepts that he decided to do that first before he withdrew from his course. The Tribunal accepts that he lodged an application for a Protection visa at 11.10am on 16 February 2023 and then sent an email to the [University 1] at 8.59pm on 16 February 2018 indicating that he wished to withdraw from the [Course 1] degree he was enrolled in.   

  3. For the reasons given above, the Tribunal is not satisfied that the applicant is a genuine convert to Christianity. The Tribunal considers that making a decision to convert to a religion is a significant decision that is not entered into lightly. This is particularly so for the applicant who had rejected the religion he grew up with and the religion of his family to become an atheist and then an agnostic. The Tribunal considers that for him to then convert to a new religion would have taken considerable belief, faith and commitment. This was not demonstrated in his evidence or his conduct and reflects poorly on his motivation for attending Church and participating in Bible study sessions. 

  4. The Tribunal considers that his attendance at Church and Bible study sessions may have initially given him a sense of community and that he benefitted from the support and friendships he made. A more pragmatic benefit was that he was able to obtain accommodation through the Church. However, this changed during the restrictions imposed during the Covid-19 pandemic. The Tribunal considers that his failure to return to Bible study sessions and attend Church in person once the restrictions imposed during the Covid-19 pandemic were lifted, despite being encouraged by the Church leaders to be involved in the fellowship of the Church, demonstrates his lack of commitment to Christianity and is one of the reasons to conclude that he is not a genuine Christian.  

  5. For the reasons given above, the Tribunal does not accept that the applicant informed his father, sister or anyone else in Bangladesh that he was attending Church in Australia or had converted to Christianity or was a Christian. It follows that the Tribunal rejects his claims that flow from that.

100.   As the Tribunal does not accept that the applicant is a genuine convert to Christianity, the Tribunal does not accept that he will seek to practise Christianity if he returns to Bangladesh now or in the reasonably foreseeable future. It follows that the Tribunal rejects his claims based on being a Christian convert from Islam. The Tribunal does not accept that he is of adverse interest to members of his family, members of the community or members of extremists groups.   

101.   In view of the above, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for any of the reasons claimed, if he returns to Bangladesh now or in the reasonably foreseeable future. 

Does Australia have protection obligations to the applicant under the refugee criterion?

102.   Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion, religion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Bangladesh. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

103.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

104.   Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

105.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Request for Ministerial intervention

106.   In submissions dated 20 October 2023, the applicant’s legal representative requested, in the alternative, that the Tribunal refer the applicant to the Minister for consideration under s.417 of the Act. The Tribunal does not propose to do so in the circumstances of this case. The Tribunal is satisfied that the applicant will be able to make this request with the assistance of his legal representative.

CONCLUSION

107.   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) or s.36(2)(aa) of the Act.

108.   There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

109.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

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.

…

Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Jurisdiction

  • Remedies

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