2101753 (Refugee)

2101753 (Refugee) [2021] AATA 3011 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2101753

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Nathan Goetz
DATE:30 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Safe Haven Enterprise visa.

Statement made on 30 June 2021 at 4:58pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Court remittal – religion – renunciation of Islam – conversion to Christianity – political opinion – Bangladesh National Party – physical violence – fear of killing – alleged suicide of a girlfriend – false legal proceedings – alleged mistreatment by stepmother – credibility issues – illegal departure – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5A, 5H, 5J – 5LA, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Safe Haven Enterprise visa under s.65 of the Migration Act 1958 (the Act).
[In] October 2012 the applicant arrived by boat without a visa at the [named territory], which is one of Australia’s seven external territories. He made an application for the visa [in] November 2015. [In] July 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. That decision was then referred to the Immigration Assessment Authority (IAA). The IAA conducted a review of the delegate’s decision and decided to affirm it [in] September 2016.
The applicant sought judicial review of the decision of the IAA.
[In] July 2018 the [Federal Circuit Court of Australia] found that the applicant did not enter Australia by sea at an ‘excised offshore place’ (meaning that the applicant was not an ‘unauthorised maritime arrival within the meaning of s.5A of the Act and therefore the refusal decision was not reviewable by the IAA. In short, the applicant’s review rights lay with the Tribunal.
[In] August 2018 the applicant applied to the Tribunal for a review of the delegate refusal decision. [In] November 2019 the Tribunal affirmed the decision not to grant the applicant a protection visa in AAT case [number].
The applicant sought judicial review of the decision of the Tribunal.
[In] April 2020 the [Federal Circuit Court of Australia] dismissed the proceedings.
The applicant sought judicial review of the decision of the Federal Circuit Court.
[In] January 2021 the Federal Court of Australia upheld the applicant’s complaint that the Tribunal had ‘fallen into error by asking the wrong question.’ The Tribunal had not considered the ‘real or imputed renunciation of Islam by the appellant’ which was ‘an essential integer of his principal claim.’ The Court reasoned that ‘had the correct question been asked, [the Tribunal’s] reasoning would have proceeded on an entirely different footing and would have engaged directly with the applicant’s claims.’ The Court held that there was a ‘distinctly realistic possibility {certainly more than a fanciful or improbably possibility} that the Tribunal’s decision could have been different had the error not occurred.’ Consequently, the review application was remitted back to the Tribunal for redetermination according to law.
The matter is now before the Tribunal pursuant to the order of the Court.
On 8 April 2021 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 16 April 2021 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. On 9 April 2021 the Tribunal received a letter appointing a new representative and a request for a postponement of the Tribunal hearing so the representative ‘had sufficient time to submit written submissions and prepare for the hearing.’ The Tribunal considered the request but refused to accede to it. In the Tribunal’s view, the period between the invitation and the hearing date would be a sufficient period of time to prepare any submissions, which could also be provided subsequent to the Tribunal hearing (which the applicant did). Further, the applicant applied for the safe haven visa in 2015 and had submitted a significant amount of statements and submissions to date and the request for a postponement did not identify that new material would be raised or relied upon at the hearing, necessitating additional statements or evidence.
On 16 April 2021 the applicant appeared at the Tribunal hearing by audio-visual link from an immigration detention centre. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages. The applicant was represented in the review application by [his representative] who appeared at the Tribunal hearing by telephone.
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 (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
Non-disclosure certificate
The department file contains a certificate issued under s.438 of the Act concerning various documents. The previous Tribunal had advised the applicant of the existence of this certificate and the matters it purported to cover. For the sake of completeness, the certificate purported to claim that disclosure of the information would be contrary to the public interest because the documents referred to ‘internal working documents and business affairs.’ That is an insufficient basis for public interest immunity. The materials covered by the certificate were disclosable to the applicant and any concerns that the Tribunal had about the information contained therein was put to the applicant for his response, most notably his responses in his Irregular Maritime Arrival Interview.
Visa application form – November 2015
The form was completed with the assistance of a person named [name] with the use of an interpreter. According to the applicant’s visa application form signed on 17 November 2015, the applicant identifies as [an age]-year-old male citizen of Bangladesh who was born in [a named] Village, Jasor District, Khulna Division, Bangladesh. He has a mother, father and [specified family members] in Bangladesh. He left Bangladesh illegally on a [vessel] without any papers. He entered Australia as an ‘unauthorised maritime arrival.’ He noted his travel to Australia as sailing along the coast of [specified countries] and that he landed somewhere in [another country] for two days. He sailed to [Australia] where he arrived [in] October 2012.
The form asked the applicant about his reasons for claiming protection. The applicant directed the decision-maker to his statement for answers to Question 90 to 97.
According to the statement, the applicant fears that if he was forced to return to Bangladesh, he would be seriously harmed because of his relationship with his ex-girlfriend and his political association with the Bangladesh National Party. He fears harm from the family of the girl he was dating and from members of the Awami League.
He noted his religion as Islam.
The applicant wrote that when he was a child his stepmother was not fond of him. He was physically hurt and was stopped from attending school. He wrote that his stepmother did this because she wanted to prevent the applicant from inheriting his father’s property.
The applicant detailed that he met a girl named [Ms A] in approximately 2008 when he was between [age range] years of age. She was between [younger age range] years of age. He detailed their relationship. He described the relationship as secret. He wrote that she came from a family of strong Awami League supporters who were well known within his village. He noted that roles that her family had within the Awami League.
Gradually members of the applicant’s family found out about the relationship. He detailed how this came about. He wrote that when [Ms A’s] family found out about the relationship, her family became very angry. They were angry because her family were strong supporters of the Awami League and he was a supporter of the Bangladesh Nationalist Party. The applicant detailed his role within the Bangladesh National Party and the role of his family members.
He noted that he had already provided the Department with documents supporting his claims. He noted the letter from an officer of the [Court 1] and the letter from an Advocate of the [Court 1] both of which he claimed testified to the fact that he is a known political activist and that he should not return to Bangladesh for that reason.
The applicant wrote that [Ms A’s] family put pressure on both the applicant and [Ms A] to stop seeing each other. He noted that in approximately July to August 2010 her family members came to his workshop and physically beat him. He noted the physical injuries that resulted from this beating. In approximately December 2010 to January 2011 members of her family began to threaten the applicant. They also assaulted him. This happened between 8 to 10 times throughout 2011. Sometime in January 2011 [Ms A’s] family began beating her because of the relationship. He noted the extent of those beatings. Her family became enraged and attacked the applicant’s family. They came to his family home and threatened his family in June. Her family also threatened to find the applicant and kill him. He detailed the assault on his family. The applicant was not there because at the time he was staying in his workshop. When he heard about the attack on his family, he moved to stay at [his] uncle’s place to hide. [Ms A’s] family continued to look for him and found out where the applicant was living. A distant relative of the applicant who was a member of the Awami League contacted his family and let the family know that people were on the way to the uncle’s home so the applicant escaped. The assailants beat his uncle and caused property damage. After this, the applicant left his village and went to Dhaka.
The applicant wrote he could not appeal to the local police because [Ms A’s] family provided police with bribes so the police would help capture the applicant. After the applicant’s family members were attacked, members of the applicant’s family went to the police station to report the incident, but police refused to prosecute the case because of their association with the Awami League. The applicant wrote that in his arrival interview, he said that the family threatened to put a case against him in court, but as far as the applicant knows, this threat never eventuated.
While the applicant was living in Dhaka, members of his family informed him that [Ms A’s] family had hired thugs and killers to continue searching for him and that they knew he was living in Dhaka. From there, the applicant made plans to leave Bangladesh. The applicant heard from [Ms A’s] family that the hired thugs continue to harass his family and began beating his father and uncle demanding money.
The applicant wrote that he fears returning to Bangladesh because he will be subjected to serious harm including being killed. He is afraid that [Ms A’s] family will kill him. He has experienced past death threats from [Ms A’s] family and members of the Awami League. He fears that he will not be protected by anyone and cited the past refusal of police to protect him due to corruption and because the applicant was part of the Bangladesh Nationalist Party. He fears this will happen again. He noted his contact with family members who hold him about the harassment his family suffer from [Ms A’s] family and the Awami League which includes taking the applicant’s motorcycle, beating his father and demanding money from his uncle and father. He wrote that he would request a copy of documentation which show his father’s hospital admission.
The ongoing harassment is due to his family’s support of the Bangladesh Nationalist Party. They continue to beat his family members and drove his family from the local area unless his family abandoned its commitment to the Bangladesh Nationalist Party and supported the Awami League.
Attached to the statement were the documents that the applicant referred to, namely a letter from a person who was identified as [Lawyer A] dated 30 April 2014. This person claimed to have been appointed as the applicant’s lawyer in Bangladesh and that the applicant’s life would be in danger if he returned to Bangladesh and that the applicant was a serious political activist belonging to the opposition political party. There was also a citizenship certificate from a chairman of the union parishad and a letter from the officer in charge of the police station in [their location]. Both of those letters claimed that the applicant was not involved in any activity that was subversive of the Bangladesh state and that he was of good moral character.
Additional written statement – April 2016
The applicant provided an additional written statement dated 20 April 2016. In this statement, the applicant addressed his identity documentation, and clarified some of the information provided in his initial written statement, indicating a change to a particular person’s name, indicating that the period he was a branch president was 6 months, and particularising the authority where his uncle was a councillor. The statement also corrected a monetary measuring unit. The applicant also sought to address what he described as ‘incorrect information.’
He wrote that he had ‘submitted a letter from a lawyer in Bangladesh which said that I had a case pending against me in Bangladesh. This information is incorrect. At the time I requested this letter from the lawyer I was very traumatised and stressed that I would be sent back to Bangladesh. My understanding was that you needed to have documents in order for the case to be approved and I was very fearful of being sent back to Bangladesh. As far as I am aware there is no case pending against me with the authorities in Bangladesh.’
The applicant also detailed what he described as ‘changes to my circumstances since lodging my SHEV application.’ He wrote that he was raised a Sunni Muslim but had now changed his religion to Christianity.’ He detailed that in Bangladesh he had Christian friends and always thought they were nice people. He had a Bible in his room for approximately one year. Sometimes he would pick it up and read it. He has read it in bits and pieces. He detailed what it was that he liked about Christianity and contrasted that with Islam. He noted a Christian priest who came to the detention centre. He hoped to be baptised at some point ‘next week.’ The applicant told his father that he wanted to become a Christian and now his father is not speaking to him as his father was upset. The applicant fears that converting to Christianity will cause additional problems for him in Bangladesh. People like the applicant who convert from Islam to Christianity are in danger of being killed.
Oral evidence provided by the applicant
The applicant participated in a number of interviews in the course of his time in Australia. They included an arrival interview on 31 October 2012, an identity interview on 19 February 2013, an interview with the delegate on 27 April 2016, and a Tribunal hearing on 12 and 20 September 2016. Most recently, the applicant provided oral evidence to the Tribunal on 16 April 2021. The applicant confirmed at the most recent Tribunal hearing that he had no new protection claims to raise.
Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed in this decision.
Submissions in support of the applicant’s claims
Throughout the course of the applicant’s time in Australia, a number of written submissions have been provided on the applicant’s behalf, including written submissions dated 18 May 2016 which were provided after the delegate interview, submissions dated 24 August 2018 which were submitted to the previous Tribunal, and a number of documents submitted to both the previous Tribunal and the present Tribunal. A post-hearing submission provided to the present Tribunal was received on 19 April 2021. Numerous articles, country reports were provided. The Tribunal has considered all material provided to it but not all material is necessary to list. Where relevant to the Tribunal’s findings, the submissions, documents or articles are detailed in this decision.
FINDINGS AND REASONS
What is the country of reference?
The applicant presented his Bangladesh birth certificate and claimed that he is a Bangladesh citizen. The department and the previous Tribunal were both satisfied that the applicant is a citizen of Bangladesh with no right to enter and reside in a third country.

The Tribunal is satisfied that for the purpose of the protection visa assessment, the country of reference is Bangladesh.
Is the applicant a credible witness about his claims?
A claim about a ‘false case’ against the applicant
The applicant claimed in his written statement of 20 April 2016 that he had provided incorrect information through a lawyer in Bangladesh which said that he had a case pending against him in Bangladesh. He explained in that statement his reason for doing so. The Tribunal was troubled by what was contained in that written statement as it appeared to suggest that the applicant was party to putting fabricated evidence in support of his protection claims. The applicant seemed to suggest that the reason for doing this was because he was ‘traumatised and stressed that he would be sent back to Bangladesh.’ He seemed to suggest that he needed to have a document such as that in order for his protection case to be approved. To the Tribunal’s way of thinking, the applicant’s willingness to claim that he had a case against him in Bangladesh in order for his protection claim to be approved suggested that the applicant had a flexible approach to the truth and was prepared to fabricate evidence in order to achieve a favourable migration outcome.
The Tribunal searched all the records it had access to. The only letter from a ‘lawyer in Bangladesh’ was that of [Lawyer A variant] dated 30 April 2014. No such claim is made in the letter. However, the applicant had provided an English translation of documents titled ‘Sub: Statement,’ ‘Subject: Complaint, ‘Sub: Deposition,’ ‘First Information Report.’ These documents were included in the Department file together with a certificate from a [Doctor A] as ‘Clients Identification Documents.’ The documents which can be described as allegations of criminal conduct on behalf of the applicant are all dated in 2011. The documents which could be described as claims of criminal conduct against the applicant detailed that the applicant, together with a number of people, engaged in assault with a group of other people, and had also, in a separate complaint, had encouraged the suicide of the girlfriend who the applicant was alleged to have ‘love affairs.’ The first information report related to the suicide of this person.
The applicant told the Tribunal that he got these documents from his [uncle]. Noting the applicant declared in the visa application form that he had not been charged with any criminal offence and not the subject of any criminal investigation, the Tribunal asked why he made such a declaration given the content of those documents. The applicant said that he made this declaration because the case against him was false. It was a false case in order to chase the applicant out of the country. The Tribunal asked the applicant whether there is a criminal case against the applicant. He said there was a case after he left Bangladesh and it was investigated and found not to be true. The applicant said the case was closed because it was withdrawn. The Tribunal asked when the case was closed. The applicant said it was withdrawn when it was closed. The Tribunal asked again when the case against the applicant was withdrawn and he responded that he did not know exactly. He realised in 2014 that the case had been withdrawn against him. He said his uncle informed him about this in 2014. His uncle told him this on the telephone. His uncle obtained this news from the police station. The applicant confirmed that the two cases against him had been closed. The applicant confirmed in his oral evidence that he had been charged in connection with the case involving his girlfriend’s claimed suicide.
If the applicant was ever charged, or at least investigated in relation to this claimed criminal activity, then it would have been reasonable for the applicant to declare this in his first written statement. The fact that the applicant was subject to false allegations would clearly demonstrate that he was being targeted by his oppressors and, in the case of him being charged in relation to [Ms A’s] suicide, would demonstrate that her family were using the apparatus of the Bangladeshi state to target the applicant. None of that was mentioned in the written statement of 2015, despite the applicant providing to the Department at some stage documents to support this conclusion. Further, the applicant appears to have acknowledged that he did provide incorrect information to the Department that he had a case pending against him, as in his later 2016 statement he sought to correct the record about this. Given he wrote that his understanding was that ‘you needed to have documents in order for the case to be approved’ the Tribunal is satisfied that this demonstrates that the applicant provided the documents concerning his claimed false criminal allegations knowing that they were fabricated documents. If they were not fabricated, and the cases or investigation against the applicant were withdrawn in 2014, then he would not have needed in 2016 to suggest that he had previously suggested that he had outstanding cases against him.
The Tribunal is satisfied that the reason there is much confusion about whether the applicant was investigated and or charged as suggested by the documents submitted by him, but not mentioned in his 2015, and then suggested in 2016 that he had in fact incorrectly claimed that there were proceedings against him (which is in conflict with the suggestion that he did have proceedings against him until at least 2014 in his oral evidence) is because the applicant had little or no idea about what was contained in the allegations of criminal conduct submitted by him. The Tribunal is satisfied that the reason he had little or no idea about their contents is because there is no truth to them. It follows that the Tribunal is not satisfied that the documents are genuine.
It would appear to the Tribunal that the reason why the applicant may have been seeking to backtrack from whether he had been investigated or charged as suggested by the documents (and indeed his oral evidence to the Tribunal) may be due to the fact that on 27 April 2016, the Department wrote to the applicant and suggested that because the applicant had ‘on 30 October 2016 during your Entry interview you advised the Department that your girlfriend had committed suicide and that her family accused you of her murder.’ The letter from the Department indicated that this may be a reason to refuse to grant the applicant a protection visa, noting s.5H(2) and s.36(1C) of the Act.
When the Tribunal considers the confused nature of the evidence, and the fact that there was this email from the Department to the applicant which the applicant appears to have tried to counter by withdrawing the claims that he had a false case put against him, the Tribunal concludes that the applicant provided fabricated documents which he was readily willing to withdraw. The Tribunal is not persuaded by the subsequent written submission by the applicant’s migration agent that the applicant wrongly assumed that the Bangladesh lawyer purported to address the past criminal charges in Bangladesh. The submission does not explain how the applicant got this understanding or why the applicant sought to correct this information in the way he did. He did not, for example, advise that the cases had been concluded in 2014 as withdrawn. He purported to say that he had never been charged which was different to his oral evidence at hearing.
Claim that the applicant is a member of the Bangladesh Nationalist Party and claims arising out of this claimed profile
The applicant claims that he supports and has held a role within the Bangladesh Nationalist Party. It is because of his political opinion and role that the claimed animosity from [Ms A’s] family, who apparently support the Awami League, takes on a political tone. The Tribunal asked the applicant whether his family were involved with the Bangladesh Nationalist Party and he said they were. However, the Tribunal does not accept that the applicant has been involved in the Bangladesh Nationalist Party in any way. The Tribunal makes this finding because when the applicant participated in an irregular maritime arrival interview on 31 October 2012 the applicant was asked specifically whether the applicant or any members of his family had been associated or involved with any political group or organisation. The applicant answered no. The applicant was also asked whether he or any members of his family had been involved in any activities or protests against the government. Again, the applicant answered no. The inconsistency between what the applicant said in his irregular maritime arrival interview and his subsequent claims that he had in fact been involved with the Bangladesh Nationalist Party, as had members of his family suggested two things. First, it suggested that the applicant had fabricated this aspect of his claims. Second, it suggested that the applicant had a flexible approach to the truth, and may suggest that the applicant was not a credible witness.
The Tribunal raised this inconsistency with the applicant and asked the applicant if it was true that he and his family were involved with the Bangladesh Nationalist Party, why he claimed at his entry interview that neither he nor any of his family were involved in any political activity or members of a political party. The applicant said that at the time the question was asked he did not fully understand the question. He told the Tribunal that it was later on that he explained this. The Tribunal asked what he did not understand. The applicant then said that he thought if he answered no that would be good. He disputed that he lied. He said he thought if he answered yes that he would get into trouble. Later on, he thought about it.
The Tribunal was troubled by this answer because it does not make sense for the applicant to say that he did not lie about this question given he answered ‘no.’ Clearly that was a lie if the applicant is maintaining his claims about his and his family’s political involvement with the Bangladesh Nationalist Party. Additionally, the applicant’s explanation suggests that he thought that it would be better for him to answer ‘no’ because he thought answering ‘yes’ would ‘not be good.’ Both answers provided by the applicant, which the Tribunal finds contradictory with each other, demonstrate that the applicant has a flexible approach to the truth and is prepared to say, or not say, whatever he thinks will help him achieve a favourable migration outcome. The subsequent submission following the Tribunal hearing repeating the applicant’s reason for responding the way he did does not persuade the Tribunal.
When the Tribunal considers these concerns in combination with the other concerns that the Tribunal has about the applicant’s truthfulness, it concludes that the applicant has fabricated the claims relating to membership or involvement in any political activity with the Bangladesh Nationalist Party in Bangladesh. The Tribunal is satisfied that the applicant did so to add a political tone to the claimed harm arising from the applicant’s claimed relationship. The Tribunal is not satisfied that there is any truth to the claims about the applicant or his family’s claimed political profile.
Claims relating to the applicant’s relationship with [Ms A]
The applicant provided inconsistent evidence about facts related to his relationship with [Ms A]. The Tribunal noted to the applicant that he had claimed in the protection visa application that her family found out about the relationship in May or June 2011, but had told the delegate that in February 2010 her cousins and members of the Awami League had beaten the applicant up and threatened to kill him if he continued his contact with [Ms A]. The Tribunal asked the applicant to comment on this inconsistency, as it may suggest, when considered with other concerns that the Tribunal had about the applicant’s truthfulness, that he had manufactured the claims relating to [Ms A]. In response, the applicant said that he and [Ms A] were in a relationship since 2008. The Tribunal asked the applicant the question about the inconsistency again and he answered that he had been in a relationship since 2008 and that in 2010 he was assaulted in his house and in a marketplace. The Tribunal warned the applicant that it was finding him to be an evasive witness who was refusing to answer a direct question. The applicant responded that he was beaten after the relationship was known and that he belonged to the Bangladesh Nationalist Party. The applicant never addressed the Tribunal’s concern about this inconsistent evidence and the Tribunal is satisfied that he was unable to do so because the inconsistency comes from the fact that his evidence was fabricated.
The Tribunal also noted to the applicant that he had provided inconsistent evidence about when [Ms A] had died. The applicant had told the previous Tribunal that [Ms A] had passed away in 2012 or 2013. The applicant told that Tribunal that he was in a workshop in [a named location] when he learned of her death. Later, he told that Tribunal that attacks in Bangladesh on his family in June or July 2011 occurred because the family knew that he and [Ms A] were still together, but the previous Tribunal noted that the applicant had told the delegate that the attacks occurred after [Ms A’s] death.
When the Tribunal asked the applicant his inconsistent evidence about [Ms A’s] death, the applicant responded that he arrived in Australia in 2012. The applicant said that it must have been a mistake when it was claimed that [Ms A] died in 2012 or 2013.
The Tribunal really struggles to accept that the applicant would provide inconsistent evidence about when [Ms A] died, and inconsistent evidence about the factual basis of attacks on him in June and July 2011 which occurred because, according to what the applicant told the delegate, after she had died, which is inconsistent with the applicant’s oral evidence he provided in the entry where he said that [Ms A] had died in September or October 2011.
When the Tribunal considers this inconsistency, together with the other concerns that the Tribunal has about his credibility, it comes to the conclusion that the reason for the inconsistency is due to the fact that the relationship with [Ms A], and the claimed harm that arose from this relationship, were manufactured by the applicant in order to achieve a migration outcome. The subsequent submission from the migration agent does not address the concerns as outlined above.
Claims arising from stepmother’s treatment of the applicant
In the applicant’s Irregular Maritime Arrival Interview, the applicant never raised his claims arising from past experiences of harm concerning his step-mother. The applicant also did not raise those claims in his first written statement. There is nothing to suggest that the applicant raised this claim at the delegate interview. The first time that there appears to have been any mention regarding this claim was prior to the previous Tribunal hearing where, according to that Decision Record, the applicant raised this in written material that he was physically hurt and prevented from attending school by his step-mother who wanted to prevent him from inheriting his father’s property. In that Decision Record, the applicant claimed that he still feared his stepmother at the time he left Bangladesh. He claimed that he feared being poisoned by his stepmother who might poison his food.
The Tribunal asked the applicant to confirm that he did not mention when he first applied for the safe haven visa that he feared harm from his stepmother. The applicant disputed this and said he did. He referred to the property dispute and that he was subjected to physical assault. The Tribunal asked the applicant whether this was a reason he left Bangladesh. He said no. He said that was one of three reasons, the other two being the issue with [Ms A] and his involvement with the Bangladesh Nationalist Party.
The Tribunal asked the applicant if he had been harmed and continued to fear harm from his stepmother why he gave evidence to the previous Tribunal that he lived at home until [age] years of age. The Tribunal queried why the applicant would not leave and go elsewhere when he turned 18 years of age. The applicant repeated that he had been subject to physical and mental torture. The Tribunal asked why he remained in the family home if that was the case. The applicant said he used to stay with his grandfather who lived in the same village. The Tribunal asked the applicant whether he had ever reported the assaults perpetrated by his stepmother to the authorities. The applicant then said he told close relatives and noted his stepmother’s brother was powerful. The Tribunal told the applicant that it was finding him evasive because the Tribunal had asked him whether he reported his stepmother to the authorities. The applicant then said he did not and repeated that he told other people. When asked why he did not inform the authorities about his stepmother, the applicant said he was afraid that she would do more harm to him.
The Tribunal really struggles with the applicant’s evidence about his claimed fear of harm from his stepmother. If this was one of the reasons he left Bangladesh, then he would have raised this in his Irregular Maritime Arrival Interview, would have raised it in his initial written claim, and would have raised it with the delegate at interview. The fact that this claim was raised late in the process of applying for the visa, together with the absurdity of the applicant remaining in the family home (which he did say to the previous Tribunal) until the age of [age] years of age, demonstrate to the Tribunal that the applicant fabricated this claim in order to bolster his chances of claiming protection in Australia.
The applicant’s post-hearing submission repeated the claim arising from his stepmother and explained the reason why the applicant did not move away. The Tribunal is not persuaded by the submission. Had the applicant been harmed as he claimed, the Tribunal does not accept that he would remain in the family home until he was [age] years of age.
Claims relating to conversion to Christianity, including real or imputed renunciation of Islam
The applicant told the Tribunal that he became a Christian in Australia. In Bangladesh, he was a Muslim. He used to follow Muslim religious practice when he was in Bangladesh. The Tribunal asked the applicant if he returned to Bangladesh whether he would resume his religious practice as a Muslim or practice as a Christian. The applicant said that he is a Christian and people know this. The applicant said his family in Bangladesh were aware of this. When asked how his family became aware of this, he said that they will not accept this and people from the immigration detention centre were from his area and when they returned to Bangladesh, they told people. As a result of this, members of his family have been subjected to harassment many times.
When asked what type of harassment members of his family had suffered, the applicant said if he returned to Bangladesh it would be a grave threat. He told the Tribunal that if this was not a big issue, then he would have returned to Bangladesh. There will be a big problem and he will not get support from members of his family.
The Tribunal put to the applicant that the fact that the applicant had converted to Christianity after his arrival in Australia may suggest that his conversion was not genuine and that he had only done this to achieve the safe haven visa in Australia. The applicant disputed this. The Tribunal asked the applicant if he returned to Bangladesh and did not resume his religious practice as a Muslim, what he thought would happen to him. The applicant said that people knew he had converted to Christianity.
The Tribunal put to the applicant that there were no laws in Bangladesh that prohibited religious conversion and invited his comment. The applicant said that he heard news that Christians were killed. The Tribunal asked again whether there were any laws that prohibited a person in Bangladesh from changing their religion. The applicant said that he did not know.

The Tribunal notes that a significant amount of material had been provided by the applicant concerning his conversion to Christianity. This included a certificate of baptism from [July] 2017 and includes confirmation of the applicant’s baptism, as evidenced by oral evidence provided by [Reverend A] to the previous Tribunal. The applicant was also able to tell the previous Tribunal about the meaning of Easter. The Tribunal accepts that there are Christian religious services offered in immigration detention and that the applicant has participated in such activity.
The applicant had requested that the Tribunal take oral evidence from [Reverend A]. In light of the documentation she had provided, and her oral evidence given to the previous Tribunal, the Tribunal determined that this was unnecessary. There could be no dispute that the applicant had been baptised, participated in religious services in Australia, and that [Reverend A] would give evidence that she believed that the applicant was a genuine Christian convert. [Reverend A] telling the Tribunal about her belief about the applicant being a genuine Christian convert would not assist the Tribunal to determine this issue for itself.
As discussed with the applicant, there is no law in Bangladesh which prohibits or punishes a person who changes religion. According to the recent DFAT Report, the constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. There are no laws prohibiting religious conversion in Bangladesh. DFAT assesses that individuals converting from Islam to another religious (generally Christianity) are more likely to face society pressure than other individuals converting to Islam. DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such a risk is associated with family objections.
The Tribunal notes the above and has considered that together with the various reports provided by the applicant concerning Christians in Bangladesh. The Tribunal also notes that ‘the real or imputed renunciation of Islam by the applicant was an essential integer of his principal claim’ as found by the Federal Court, requiring that the matter be remitted to the Tribunal.
However, the Tribunal struggles to accept that the applicant is a genuine Christian convert when it takes into account its concerns about the applicant’s credibility. Given the timing of the applicant’s conversion occurring after his arrival in Australia, the Tribunal is of the view that the applicant saw an opportunity to try and bolster his protection claims by engaging in Christian services and becoming baptised. That does not make the applicant a genuine Christian convert, nor does a knowledge of Christian teaching or support from a Reverend attesting to the Reverend’s belief that the applicant is a genuine Christian convert demonstrate that the applicant is a genuine convert from Islam to Christianity.
The Tribunal does not accept that the applicant is a genuine convert to Christianity. The Tribunal does not accept therefore that the applicant has in fact renounced his previous religious practice as a Muslim. While the Tribunal accepts that there is no evidence that the applicant has continued to practice as a Muslim in Australia (such as attending Mosque etc.), the Tribunal is satisfied that the absence of this evidence would be due to the fact that the applicant commenced participating in Christian services and observances in order to achieve a favourable migration outcome. The Tribunal is satisfied that when the applicant returns to Bangladesh, he will resume whatever his religious practice was in Bangladesh before he left to come to Australia.
In terms of the conduct concerning the practice of Christianity in Australia, the Tribunal is not satisfied that there is any truth to the applicant’s claim that his family are aware of this claimed conversion, or that the ‘other people’ in immigration detention who returned to Bangladesh have told anyone about the applicant’s activity. The applicant claimed that videos were taken of him engaged in religious practice while he was in detention and ‘shown to people in Bangladesh.’ This evidence lacked any form of specifics such as the who, when, where, and why that it is reasonable to expect would accompany the applicant’s oral evidence. To the Tribunal’s way of thinking, the applicant would have been able to provide more detail in his oral evidence to identify who these people were, who they told, when they told these unknown people, and how and when the applicant became aware that they were told about his Christian activity if there was any truth to those claims. The Tribunal is satisfied that there was an absence of specific detail about all of this because there is no truth to the applicant’s claim. The Tribunal is satisfied that if the applicant returns to Bangladesh, he will not discuss any of the Christian religious activity he participated in during his time in Australia because he was not genuine in doing so. To all intents and purposes, the applicant will return to Bangladesh with the same profile he left with in 2012.
The applicant’s post-hearing submission noted that the previous Tribunal ‘had accepted that the people at the detention centre may have been aware about the applicant’s religious activity’ and that ‘this information may have been sent to the applicant’s family or others in Bangladesh. That may be the case, but this Tribunal is not bound by any previous finding. The Tribunal needs to make its own findings.
Claim concerning data breach identifying the applicant in Australia and possible profile as an asylum seeker
On 12 March 2014, the Department wrote to the applicant and advised him that ‘a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. The letter disclosed that the information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report and was not easily accessible. The letter went on to advise that the information that was accessible was the applicant’s name, date of birth, nationality, gender, details about his detention (when he was detained, reason and where) and whether the applicant had family members in detention. The letter advised that the no information about the applicant’s protection claims had been released.
The Tribunal asked the applicant about what his concerns were about the data breach. On the basis of the letter, the Tribunal could not see what the claim was. The applicant said that ‘information was released’ which meant that he could not get a Bangladesh passport. He said he would have ‘big problems.’ He was concerned that he would not get a visa to go to any other country. The Tribunal asked the applicant why he would not be able to get a Bangladesh passport due to the data breach. The applicant said that it was because he was ‘political’ and as soon as he returned, he would be arrested.
The Tribunal put to the applicant that it had no information that Bangladesh prosecutes people who left Bangladesh without a passport. Although the Tribunal concedes that the recent DFAT report notes that there is the Emigration Ordinance Act (1982) which makes it an offence to depart Bangladesh other than in accordance with the procedures laid down in the Act, that report does not disclose that anyone has been prosecuted for breach of that law. Further, the same report notes DFAT’s assessment that there is no evidence to suggest that recent returnees have received adverse attention from authorities or others. The report further notes that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. DFAT assesses it is unlikely that authorities have the capacity to check or monitor each of these people, and that the vast majority of returning Bangladeshis will re-enter the country without incident, although people with a political profile may be noted. DFAT assesses that most returnees, including failed asylum seeks, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.
While the Tribunal accepts that the applicant departed Bangladesh by boat in breach of the relevant ordinance, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm in Bangladesh because he did so, and is not satisfied that there is a real risk that the applicant will suffer harm in Bangladesh if returned there because he departed Bangladesh in the manner he did. The Tribunal does not accept that the applicant has any profile which would result in the authorities in Bangladesh having any interest in prosecuting the applicant for his illegal departure. Similarly, the Tribunal does not accept that the applicant has a profile as a claimed asylum seeker, as the data breach only noted that the applicant was in immigration detention and there is no evidence that details of the fact that the applicant applied for protection were made public. It is a remote chance that someone in Bangladesh was watching the website and discovered that the applicant was in immigration detention in Australia, and even more remote that this person was connected to any group that claimed interest in the applicant.
CONCLUSION
The Tribunal does not accept that the applicant or any member of his family were involved with the Bangladesh Nationalist Party or engaged in any political activity. The Tribunal is satisfied that this was fabricated as a means of claiming protection. The Tribunal does not accept that the applicant or any of his family were harmed because of their claimed political profile. It follows that the Tribunal does not accept that the applicant has a real chance of serious harm in Bangladesh on account of his claimed political opinion because the Tribunal does not accept that the applicant or his family have the profile he claimed.
The Tribunal does not accept that the applicant had a relationship with a person named [Ms A] or that there was any harm directed to him or his family as a result of this claimed relationship. The Tribunal is satisfied that this was fabricated as a means of claiming protection. It follows that the Tribunal does not accept that there is a real chance that the applicant will be harmed in Bangladesh upon his return.
The Tribunal does not accept that the applicant renounced Islam or has an imputation of doing so. Nor does the Tribunal accept that the applicant is a genuine Christian convert. It follows that the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm on account of this claimed conversion or imputed rejection of Islam.
The Tribunal does not accept that the applicant has been harmed by his stepmother in the past as he claimed. It follows that the Tribunal does not accept that there is a real chance that the applicant will be harmed by his stepmother in the future.
The Tribunal does not accept that as a result of the data breach, or the fact that the applicant departed Bangladesh by boat without a passport, or that the fact that the applicant would be returned to Bangladesh involuntarily, there is a real chance that the applicant will face serious harm, or that there is a real risk that the applicant will face significant harm as a result of his removal from Australia to Bangladesh.
The Tribunal is not satisfied that the applicant has any adverse profile in Bangladesh. The Tribunal is not satisfied that the applicant is of any adverse interest to any person, group or authority in Bangladesh.
Refugee
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
The Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Safe Haven Enterprise visa.
Nathan Goetz
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.
…

[2021] AATA 3011

30 June 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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