1415015 (Refugee) - [2016] AATA 3651

1415015 (Refugee) [2016] AATA 3651 (18 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1415015
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Linda Symons
DATE:18 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 March 2016 at 4:21pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant, who claims to be Stateless, arrived in Australia on [date] September 2012, as the holder of a [temporary] visa. The second, third, fourth and fifth named applicants, who also claim to be Stateless, are children of the first named applicant. They accompanied her to Australia on [date] September 2012.
The first, second, third and fourth named applicants applied to the Department of Immigration and Border Protection (the Department) for the Protection visas on [date] October 2012. The fifth named applicant was subsequently included in the application on [date] April 2013. The Department refused to grant the visas on [date] August 2014. On [date] September 2014, they applied to the Tribunal for review of this decision.
The applicants appeared before the Tribunal on 28 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [name], [name] and [name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.
The issues that arise on review are whether Australia has protection obligations to the applicants under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Complementary protection criterion
If a person is found not to meet the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1415015 (Refugee) [2016] AATA 3651
Case: [2016] AATA 3651
Decision Date: 18 March 2016

CaseChat Overview and Summary

The applicants, a family of five, appealed against the refusal of their applications for Protection visas. The primary issue before the Tribunal was whether the applicants satisfied the criterion set out in s.36(2)(a) or (aa) of the Act for a Protection visa. The Tribunal examined whether the applicants had a right to enter and reside in [Country 1] and whether the first named applicant had taken all possible steps to avail herself of that right. The Tribunal also examined whether the applicants had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in [Country 1] or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants availing themselves of the right in s.36(3) of the Act, there would be a real risk of the applicants suffering significant harm in [Country 1]. The Tribunal further examined whether the applicants had a well-founded fear of being returned from [Country 1] to a country where they have a well-founded fear of being persecuted. The Tribunal found that the applicants had a right to enter and reside in [Country 1] but that the first named applicant had not taken all possible steps to avail herself of that right. The Tribunal also found that the applicants did not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in [Country 1] and that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants availing themselves of the right in s.36(3) of the Act, there would be a real risk of the applicants suffering significant harm in [Country 1]. The Tribunal further found that the applicants did not have a well-founded fear of being returned by [Country 1] to a country where they have a well-founded fear of being persecuted. Accordingly, the Tribunal found that the applicants did not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a Protection visa.

ORDERS
The Tribunal affirmed the decision not to grant the applicants Protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children. CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS The first named applicant’s claims in her visa application are summarised as follows:·She is a Rohingya and has endured severe discrimination and persecution during her entire life in Myanmar. ·Her parents worked as [occupation] in a [rural area]. She completed Primary School but did not complete Secondary School due to the harassment she faced at school because of her religion. She lived with her parents and helped them [with their occupation] until she got married.·Since 1990 her father routinely applied for permission to leave his village and travel. This restriction did not apply to other residents of [this] State. Travel restrictions had serious repercussions on their livelihood and food security. ·On [date] January 1997, [number] of her family members including her father, [relatives] and herself travelled to Yangon after bribing an army captain to obtain travel permits. The travel permits were obtained for the purpose of obtaining medical treatment for her [Relative A] and they restricted their stay in Yangon to 40 days. ·Her father planned her marriage and on [date] October 1997 she got married to her husband, [name], In Yangon. As they had overstayed the travel permit they had to bribe an immigration officer in the local township for their extended stay in Yangon. She and her husband subsequently moved to [Country 1]. Her father returned to[location]. As her [Relative A] was not well, her [relatives] extended their stay in Yangon by bribing the immigration officer. ·When her father returned to [home], he was summoned by the Nasaka (border control security office) and charged with disobeying the conditions of his travel permit. Her father was detained for a couple of days without “proper charge” and trial. When her [sibling] made some inquiries about her father, [sibling] was told that he would be released upon payment of the sum of [amount] kyats within a week or he would be transferred to a gaol without a trial. Her [sibling] sold their [property] and secured her father’s release. ·About a week after his release, her father was questioned by the same Nasaka office in relation to her not returning home. Her father paid them about [amount] kyats to stop them harassing her family about her disappearance. Her husband obtained a false passport for her and she travelled to [Country 1] with him. Rohingyas cannot get married without permission and it takes more than 2 years and the payment of money to obtain the permit. She was hastily married while they were in Yangon. ·Her husband tried to obtain residence in [Country 1] but failed. This meant that they had to leave [Country 1] to renew their visas. They travelled to [Country 2] and Myanmar. Every time they returned to Myanmar they had to pay bribes to exit Myanmar. ·Her first child, a [gender], was born in Myanmar on [date]. Her second child, a [gender], was born in Myanmar on [date]. They finally obtained residence permits for [Country 1] in 2004. ·In May 2005, her [relatives] were arrested in Yangon and charged with breaching the travel permit. Their properties and other assets were confiscated. They were sentenced to 7 years imprisonment without due process or trial. They were taken to a notorious gaol in the [name] township. Her [Relative A] passed away 6 months later. She passed away due to internal injuries sustained through beatings and torture in the gaol. They paid [amount] Kyats to the gaol authorities for the release of her body. Her [Relative A] was beaten to death because she stayed away and was not arrested with the rest of the family. She has not been able to cope with her life since then. ·The authorities from her town have threatened that she will be given a life sentence if she returns to her home. She was scared and did not return to Myanmar for 2 years even though she wanted to see her parents. ·Her third child, a [gender], was born in [Country 1] on [date]. In May 2010, she travelled to [country] and went to the border town of [name]. She brought her parents there and spent 4 weeks with them. ·In October 2010, her [relatives] were released from gaol. They were in poor health. They told her they were tortured and asked questions about her. In March 2011, 1 of her [relatives] passed away due to the torture and beatings he sustained while in gaol. ·Her [sibling] graduated from High School with good marks but experienced difficulties gaining admission into the [college]. ·The 1982 Citizenship Law of Burma stripped most Rohingya of their nationality and made them Stateless. They do not have National Identification Cards. The laws in Myanmar discriminate against Rohingyas in many spheres of their lives. Rohingyas who marry without a permit face up to 10 years imprisonment. Rohingyas do not have freedom of movement within Myanmar. Rohingyas who leave Myanmar are denied the right to return and they face long term imprisonment if captured upon their return. Because of her family’s experiences and the circumstances of the Rohingyas, she has developed anti-government sentiments. ·Following an incident on 3 June 2012, there has been widespread violence between the Rakhine and Rohingyas in Rakhine State. There have been many atrocities committed against the Rohingyas and the security forces have turned a blind eye. Many Rohingya have fled from Myanmar. Her husband has been campaigning hard through NGOs and international organizations for a peaceful solution for the plight of the Rohingyas. He has helped to organize international conferences in regard to the Rohingyas crisis. He has been working with local NGOs in [Country 1] and [Country 2] and she has supported him. ·They were concerned because they needed to maintain the validity of their passports to retain their residence in [Country 1]. One of their friends approached the Myanmar Embassy in [Country 1] to extend his passport and was told that the embassy was unable to do so as the policy was not to provide services to Rohingyas. He was referred to the Passport Office in Yangon. Their chances of renewing their passports are less likely due to her husband’s activities through NGOs and international organizations to find a solution for the Rohingyas. ·Once her passport expires her residential permit in [Country 1] will be cancelled immediately. This will put them in danger if they have to return to Myanmar. If she returns to Myanmar, her life and her children’s lives will be jeopardized. She will be prosecuted because she breached the travel permit when she moved to Yangon. ·They decided to come to Australia and establish a new life here. Her husband could not follow them as he has to complete some unfinished business deals. She is pregnant and is very emotional. She seeks protection in Australia. If she returns to Myanmar she will face persecution because of her race, religion, political and anti-government activities.

Decision

Reasons for decision

The website for the Myanmar Embassy in Australia indicates that passports can be renewed at the Myanmar Embassy.[8] It indicates that a fine of AUD$30.00 is levied if the passport renewal application is submitted after the expiry date of the passport. It indicates that an application can also be made for a passport for a newborn baby to the Myanmar Embassy and that the issuing fee for a new passport is AUD$30.00.[9] [8] Myanmar Embassy, Canberra, Australia. ( Ibid. (>During the hearing, the Tribunal asked the first named applicant whether she had sought to renew her passport at the Myanmar Embassy in Australia and she answered no. The Tribunal explained to her the requirements of s.36(3) of the Act. The Tribunal raised as an issue the fact that she had not taken any steps to renew her passport and its concerns that she had not taken all possible steps to avail herself of the right to enter and reside in [Country 1]. She responded that the reason she did not approach the Myanmar Embassy in Australia is because she had claimed protection in Australia and if the Myanmar Embassy found out they would have asked questions. The Tribunal does not accept this explanation as the Australian authorities do not disclose the details of asylum seekers so it is unlikely that the Myanmar Embassy would have found out that she had sought asylum in Australia. In her visa application, the first named applicant made written claims that one of her friends approached the Myanmar Embassy in [Country 1] to extend his passport and was told that the embassy was unable to do so as the policy was not to provide services to Rohingyas and he was referred to the Passport Office in Yangon. She has not provided the Tribunal with any evidence to support this claim. On the contrary, her evidence is that her passport is genuine and that she was able to renew her passport at the Myanmar Embassy in [Country 1] in 2010. She has not provided the Tribunal with any evidence to indicate that this is a policy being implemented at the Myanmar Embassy in Australia. There is no information on the website of the Myanmar Embassy in Australia to indicate that this might be the case.In her visa application, the first named applicant made written claims that the chances of renewing their passports are less likely due to her husband’s activities through NGOs and international organizations to find a solution for the Rohingyas. Her evidence to the Tribunal is that her husband owns an import and export business in [Country 1]. She stated that he is required to travel overseas for his work. She stated that he goes to Myanmar every six months and sometimes once a year. She has provided to the Department a document showing her husband‘s travel history from [date] July 2010 to [date] February 2013. It indicates that he travelled internationally on six occasions in 2011 and on seven occasions in 2012. He has travelled to Australia on three occasions. The first named applicant initially gave evidence that her husband’s passport has expired. When asked how he is able to travel internationally without a valid passport, she responded that he probably renewed his passport through an agent. Her evidence is that her husband continues to live and work in [Country 1] so that he can support her and their children. The Tribunal is of the view that if the applicants are likely to have problems renewing their passports because of the activities of the first named applicant’s husband, then it is even more likely that he would have problems renewing his Myanmar passport because of his activities. The first named applicant’s husband’s ability to continue to operate his import and export business, which requires him to travel internationally on a regular basis, and his ability to renew his passport, is inconsistent with the first named applicant’s claims that she and her children would have difficulties renewing their passports because of her husband’s activities. The Tribunal does not accept this claim. The Tribunal is not satisfied, on the evidence before it, that the first, second, third and fourth named applicants would not be able to renew their passports at the Myanmar Embassy in Australia or that the fifth named applicant would not be able to obtain a new passport at the Myanmar Embassy in Australia The first named applicant was aware, or should have been aware, that her application for Protection visas was refused by the Department pursuant to s.36(3) of the Act. This was again raised as an issue with her at the Tribunal hearing. The Tribunal is of the view that applying for the passports, if not actually obtaining them, is the least possible step that the first named applicant could have taken to exercise her right to enter and reside in [Country 1]. Despite delaying the finalization of this review so that the first named applicant could have another opportunity to take this step and remedy the problem, she has not provided the Tribunal with any evidence that she has sought to renew her passport and the passports of the second, third and fourth named applicants or apply for a new passport for the fifth named applicant. There is no evidence before the Tribunal that the first named applicant has taken any steps to apply for permanent residence in [Country 1] for the fifth named applicant as [child] is entitled to do.[10] [10] [Information deleted]Therefore, the Tribunal is not satisfied that the first named applicant has taken all possible steps to avail herself of the right to enter and reside in [Country 1].Subsections 36(4), 36(5) and 36(5A) of the Act sets out the circumstances in which s.36(3) of the Act will not apply. They state as follows:(4) However, subsection (3) does not apply in relation to a country in respect of which:(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:(a)the country will return the non-citizen to another country; and(b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.(5A)Also, subsection (3) does not apply in relation to a country if:(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.The first named applicant has not made any written or oral claims against [Country 1]. On the contrary, she has applied for and obtained permanent residence in [Country 1] on two occasions. The Tribunal therefore finds that the provisions of s.36(4) of the Act do not apply. Although [Country 1] is not a signatory to the Refugees Convention, the [Country 1] government co-operates with the Office of the UN High Commissioner for Refugees and other humanitarian organizations to provide protection and assistance to asylum seekers and other persons of concern. [11] The government of [Country 1] has established a system for providing protection to refugees on a case by case basis.[12] The UNHCR Regional Office in Bangkok monitors the situation for asylum seekers and refugees in the south east Asian region, including [Country 1], and works with the countries in this region to promote and implement comprehensive protection sensitive responses to irregular movements of people and mixed migration and find comprehensive solutions.[13] [11] [Information deleted][12] Ibid.[13] [Information deleted]In view of the above, the Tribunal is satisfied that the government of [Country 1] will not refoule any person to a country where they claim they will face persecution for a Refugees Convention reason or would suffer significant harm. Therefore, the Tribunal is not satisfied that the first named applicant has a well-founded fear that the government of [Country 1] will return her to Myanmar. Accordingly, the Tribunal finds that the provisions of s.36(5) and s.36(5A) of the Act do not apply.FindingsHaving considered all the evidence, the Tribunal finds that the first named applicant has a right to enter and reside in [Country 1]. The Tribunal finds that the first named applicant has not taken all possible steps to avail herself of that right. Furthermore, the Tribunal finds that the first named applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in [Country 1] and that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant availing herself of the right in s.36(3) of the Act, there would be a real risk of the first named applicant suffering significant harm in [Country 1]. The Tribunal further finds that the first named applicant does not have a well-founded fear of being returned from [Country 1] to a country where she has a well-founded fear of being persecuted. The Tribunal finds that the first named applicant does not have a well-founded fear of being returned by [Country 1] to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant availing herself of the right in s.36(3) of the Act, there would be a real risk of the first named applicant suffering significant harm.Accordingly, pursuant to s.36(3) of the Act, Australia does not have protection obligations in respect of the first named applicant.CONCLUSIONFor the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, she does not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a Protection visa.There is no suggestion that the first named 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 s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the first named applicant does do not satisfy the criterion in s.36(2) of the Act.It follows that the second, third, fourth and fifth named applicants are unable to satisfy the criteria set out in s.36(2)(b) or s.36(2)(c) of the Act for Protection visas.DECISIONThe Tribunal affirms the decision not to grant the applicants Protection visas.Linda SymonsMember

Ratio Decidendi

Legal Principle Established

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