1417711 (Refugee)

[2016] AATA 3920

1417711 (Refugee) [2016] AATA 3920 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417711

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Rodger Shanahan

DATE:27 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2016 at 4:17pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a stateless, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Protection Visa Application

5. The applicant claimed that he was stateless and did not have the right to enter or reside in Burma.  He was a Sunni Rohingya.  He had lived in Burma all his life and experienced systematic persecution.  The Burmese authorities wanted to kill Rohingya because they are Muslim, not Buddhist.  He was prevented from working and could only survive by farming, selling [produce].  The government commonly confiscated their goods and stole their money.  He was limited to basic education and couldn’t use his ethnic language at school.

6. He could not freely practice his religion in Burma, attend mosque or engage in religious festivals such as Eid, and couldn’t have wedding celebrations for fear of being targeted by Burmese authorities.  Rohingya can’t use public hospitals and have to use small clinics, can’t travel interstate and are restricted to Arakan.  They have no protection from Burmese authorities or legal protection.  He lived in fear every day of being harassed, beaten and harmed by Burmese authorities.

7. His family’s property was seized by the Burmese authorities when he was young.  He worked selling fresh produce with his father, who would be beaten by the Burmese authorities.  In 1990 the Burmese authorities vandalised and closed his father’s store.  The applicant claimed that he had been targeted by the Burmese authorities also and had his good confiscated if they saw him on the side of the road, take his money and assault him and verbally abuse him.

8. In or around July 2012 his village was attacked by the Burmese authorities and monks, entered their village and burnt their mosque. His home was not targeted; he had seen them coming and fled to the next village taking his family with him. Because the situation was not improving and the targeted attacks on their villages and mosques was becoming more frequent he had to flee Burma.

   Tribunal Hearing

9. The applicant claimed he wasn’t accepted by his country and there was nowhere that he could live.  Asked what would happen to him specifically, he claimed his family had been interrogated by the authorities as they wanted to know where he was. The authorities knew he was in Australia.  Asked again what would happen to him if he returned to Burma, he claimed that he would be detained or killed by the authorities.  They would do this because he was Rohingya.  He had been detained, interrogated and harassed by the police in the past because he was Rohingya.

10. He claimed that certain laws only applied to Rohingya; he was advised to concentrate on his personal situation as the Tribunal had access to country information regarding the general situation.  He claimed that he left Burma because of the discrimination he had faced.  Asked again what had happened to him that made him leave Burma, he claimed that he had a roadside shop that was confiscated by authorities because he was Rohingya.

11. He had the shop for five or six years but had to regularly move because it wasn’t allowed to operate his business in one place as the authorities would check.  Authorities only targeted Rohingya and not other Burmese at all, and they were told they didn’t belong in Burma. In 2012 his shop was confiscated

12. His money and goods were taken and then the authorities were looking for him to arrest him because he hadn’t obeyed their instruction to give them more money; he couldn’t afford to do this.  He was asked why he wasn’t arrested when they confiscated his shop and he claimed that as a Rohingya he wasn’t allowed to trade.  He was asked again why, if they wanted more money from him then they didn’t arrest him and ask him or his family to give them money to release him.  If he didn’t have any money himself then it seemed strange that they would confiscate his only income-producing asset and then demand more money.  He claimed they asked for money when they confiscated his goods but he couldn’t pay.

13. They continued to come to ask him for money. He was asked why they kept on coming to him if he could never pay.  He thought that they would probably arrest him at the end.  The police came to him about 10 times asking for money. In the past he had given them money when they tried to extort him.  He was again asked why they came to him 10 times asking him for money he never had; he claimed he didn’t know why.  Asked where they visited him, he claimed they came to his shop.  Asked to clarify what occurred given his shop had been confiscated in 2012, he then said the police came 10 times before his shop was confiscated and after this they came several times to try to arrest him but he escaped to [another country] and then [to a third country].

14. It was put to him that the Tribunal was confused and was asked to clarify issues.  He then said the police came to him 10 times trying to extort money but he couldn’t pay and then they confiscated his shop.  After this they came to arrest him several times but he avoided them by staying at a friend’s house and hiding.  He hid for about 15 days before escaping.  His shop was confiscated at the end of 2012 and he left Burma [in] January 2013

15. He had the shop for five or six years and before this worked for a [goods] shop from 1997.  Prior to this he had been helping his father in a [products] shop in Rangoon.  They moved there in 1991 because he had been persecuted in Rakhine; he had no freedom of religion, had his land confiscated and couldn’t finish school.  His whole family moved there; his father had friends in Rangoon.  Asked how they knew this friend, he claimed they had previously moved there from Rakhine.

16. In Rakhine State his family had no identification.  As a Rohingya they could not obtain any identification.  None of his immediate or past family had identification.  They had tried but the government did not issue any.  Country information was put to him that indicated the Burmese government issued even Rohingya with foreign identification certificates so his family should at least have had this.  He claimed that the government only started doing this recently, after the riots in 2013 or 2014. 

17. It was put to him that identification documents had been issued since 1982, either the foreign card or a national identity card.  His family should therefore have had access to a foreigners registration card since 1982.  He claimed he had no idea how these were obtained but his family never had them and he had never seen them.  Perhaps his family couldn’t afford the bribe.  It was put to him that there was no need for a bribe to get a card that identified them as foreigners rather than Burmese. 

18. He claimed that without paying a bribe it was not possible to get any identification.  His family were very poor.  After he travelled to Rangoon in 1991he never went anywhere outside Rangoon as he wasn’t allowed to move.  Besides his stall being confiscated this was the only incident where he had been targeted because he was Rohingya.  He claimed that other people had been and he was advised the Tribunal was only interested in his personal circumstances.

19. He was a practising Sunni Muslim and went to [a mosque in Australian City 1], although he couldn’t name the Imam’s name as he just followed the English sermon.  He had been going there three years – he went every now and then and asked to clarify, he claimed he went once or twice a week mostly on Fridays.  The khutba (sermon) was given in Arabic and English – he didn’t understand either language.  He went by himself and walked there as it wasn’t far from his house.

20. Most Rohingya in [Australian City 1] went to [that] mosque.  In Burma he couldn’t properly practise faith because the police targeted them.  He sometimes went to the mosque as he wasn’t allowed to go there all the time. He had to go there secretly because some extremist Buddhists were targeting Muslims.  He would go to mosque in Rangoon once a week.  He was able to celebrate Eid but only inside the house as they weren’t allowed to celebrate them outside. He was asked to name the Eids in the Islamic calendar and he said there were two; Korbani and Eid.  One had the sacrifice of a cow and the other had sweets.  Asked what they signified, he claimed they were just celebrations.  Eid was after Ramadan and later Korbani came.

21. He was asked if he could still attend mosque weekly and celebrate Eid, why he felt he was persecuted because of his religion and he claimed that he had to pray five times a day in a mosque but wasn’t allowed to.  He was asked why he didn’t do this in Australia and he claimed he was working so he couldn’t.  It was put to him that he worked in Rangoon so didn’t attend five times there.  He claimed he could in Australia, whereas he couldn’t in Burma.  It was put to him that the group prayer (Friday) was the most important and the member’s experience of living in Saudi Arabia was that people prayed at home or outside on a prayer mat and didn’t necessarily attend mosque five times a day. 

22. He claimed that even once a week wasn’t allowed and they had to attend the mosque secretly.  They could pray at home individually.  He was asked how he could go to mosque secretly yet he attended every week – the authorities would have stopped them going given they would have known that group prayers were on Friday.  He claimed what he meant by secretly was that he couldn’t show any external evidence of being Muslim.  It wasn’t safe if he wore a prayer cap as there were extremists everywhere.  Asked if he could go without wearing his cap but put it on inside the mosque, he said that he could.

23. It was put to the applicant that on his statutory declaration he claimed that in July 2012 his village had been attacked by the Burmese authorities and that he took his family with him and fled to the next village.  He claimed that this wasn’t correct and he belived it was a misinterpretation as it was a Bengali interpreter.  He was in Rangoon at this time.  He was told a statutory declaration was important and he was asked if he had it read back to him and he said it was but he couldn’t understand. 

24. He never asked for an interpreter that he could understand as he was very new and didn’t understand he could do this.  Asked if there was anything else that was incorrect, he claimed he didn’t know as he couldn’t read English.  It was put to him at the start whether he had agreed whether everything in his claims were correct and he has stated it was.  He claimed it just said yes to everything the interpreter said to him.  He confirmed that it had been read back to him.  It was put to him that if he didn’t understand the interpreter it was reasonable to assume that there would be mistakes scattered throughout the statutory declaration and yet he claimed only this part was incorrect. .   

25. He claimed he had said that because of the Rakhine incident he didn’t feel safe and had to seek shelter in Rangoon.  He was asked why it would have been misinterpreted to the extent that he claimed it was, and he he stated that he assumed that it was poor interpretation.  There were incidents everywhere in 2012 including Rangoon.  He was asked if he moved his family in 2012 and he claimed that he hadn’t so was asked why it could be misinterpreted if he had not had to move his family.  He claimed he had to hide with his family and it was this that he was referring to.  The riots had started in Rakhine and he was afraid it would spread to Rangoon.  He hid in his friend’s house with his wife and children but didn’t know about his parents. 

26. He was asked if he lived with his parents and he said they lived at separate addresses.  He was advised about s 424AA and it was put to him that in his entry interview he had given his father’s address as the same as his own address in Rangoon yet he had claimed at hearing that they lived at separate addresses.  The inconsistency could call into question the applicant’s credibility as a witness. 

27. He claimed that previously he was only asked his parents’, not his address.  After he got married he moved to an area where there were mostly Buddhist Burmese.  He lived at [a specified address] in Rangoon.  He had not given this address to DIBP because he claimed he was not asked for his address at the time and provided his parents’ address.  He was asked if he had told them that his wife resided there, and he said he didn’t.  It was put to him that he had been asked to provide an emergency contact and he gave his wife’s name, phone number and the same address as his father.  This also called into question his credibility.  He claimed he may have made a mistake as he didn’t understand what he was being asked.  It was put to him that with the lack of documentary evidence, the Tribunal needed to establish his credibility. 

28. Asked when he believed that he had been misinterpreted during his statutory declaration, he claimed that this was the first time he knew about it.  This had not been raised with him previously.  Under s 424AA it was put to him that this same issue was raised with him in his DIBP interview and that it was a misinterpretation.  This was inconsistent with what he had claimed today to the Tribunal and again raised issues regarding his credibility.  He claimed that he was telling the truth now, and had told DIBP that he had been able to understand the interpreter.  He was also advised that the adviser’s submission included the claim about the village being attacked by monks and others.

29. Country information was put to him that Rohingya in Rangoon were treated qualitatively better in Rangoon than in Rakhine and there was an established Rohingya community there.  They suffered discrimination but there was no indication they had become specific targets for violence and were generally treated the same way that Muslims in general were treated and could access government health and education.  Many in Rangoon possessed national IDs and from 1982 foreign registration certificates were issued. The Tribunal was concerned that his situation was different to those in Rakhine in terms of not being targeted and being able to access government services.  His family appeared to be able to access some form of identification and his inability to provide any identity documents could be because he possessed a national ID card.

30. He claimed he had no ID documents and this was the main reason he couldn’t live there. If he had them he had no reason to escape.  It was put to him that there were always pull factors given Australia offered greater economic opportunities.  There were several inconsistencies in his claims internally and with country information.  The Tribunal had to determine whether any discrimination he suffered equated to persecution.  He reiterated that Rohingya were not treated well and was getting worse.  The Burmese government was trying to get rid of Rohingya.

31. The Tribunal had to satisfy itself as to what ID documents he had access to. If he had access to a national ID card he could get a passport and country information indicated that many Rohingya in Rangoon had such documents and that this could apply to him, as would a foreigner’s card or an older white card.  Yet he claimed he had no documentation whatsoever, whereas country information indicated that he should have access to one of these forms and his inability to show any identity documentation may be because he did have a national ID card.  He claimed that most Rohingyas didn’t accept the temporary ID card and so they refused them, which is why he didn’t have one.

32. It was put to him that this was for more recent documents and he had never mentioned this previously.  It was reasonable to believe that he or his father should have had much older documentation than the card he was referring to.  He claimed that the documents may have been issued much earlier or they had refused them.  He was told that he should advise about exactly what documents he or his family had or had refused.  He was given additional time post-hearing to try to find out their documentation history.

33. He claimed that all Muslims were considered temporary residents and it would be very difficult for him to return to Burma.  He was again advised that there was a difference between discrimination and persecution and the Tribunal had to determine what he would experience.

    CONSIDERATION OF CLAIMS AND EVIDENCE

34. The applicant is a [age] year-old married male who arrived in Australia as an Unauthorised Maritime Arrival [in] March 2013.  He applied for protection [in] July 2013.  I am satisfied that Burma has been his country of habitual residence and I consider it to be his country of reference.  The applicant claimed that he would be detained or killed by the Burmese authorities because he was Rohingya. 

35. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

36. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.

    Identity Status

37. I am satisfied that the applicant is a Rohingya Muslim based on his language and sufficient knowledge of the faith he claims to practice.  The Tribunal then needs to turn its attention to whether he is stateless, a Burmese citizen or a documented Rohingya without citizenship. It has been difficult to do this because the applicant has been evasive, and at times inconsistent in his evidence regarding his status.

38. To begin with he claimed that he had no identification, as a Rohingya he could not obtain any identification and neither any of his immediate or past family had any identification.  It was not until after the Tribunal had advised him that his family must have had access to some documentation that he said the government only gave out identification certificates in 2013 or 2014, and later still that he produced post-hearing what he claimed was his mother’s National Registration Card (NRC). He claimed that his father also had one but that it was confiscated after he died.  There was no further explanation given as to who confiscated the card, nor why it would have been confiscated.  There is no country information that would indicate that such cards are confiscated on someone’s death 

39. Country information indicates that between 1982 and 2011 Burmese residents were either issued NRC or Foreign Registration Cards (FRC) and that a NRC is proof of identity and permanent residence but not citizenship.[1]  Country information regarding the status of Rohingya in Rangoon is not in complete agreement, with one witness claiming that the majority have full citizenship but later that very few did.  DFAT reports that ‘.a significant number of Rohingya in Rangoon possess NRC, and can obtain passports’[2]

    [1] DIBP information Request MMRCI150601123043610 dated 25 June 2015, p 4.

    [2] Ibid

1. The alleged lack of knowledge regarding the family’s identity documents, his evasiveness in addressing whether his family could have had any, and then the selective proffering of only his mother’s raises concerns in the Tribunal’s mind as to the whether the applicant is documented but without citizenship or whether he is a citizen and has tried to hide this by failing to provide his father’s ID. I am disinclined to give the applicant the benefit of the doubt given the numerous inconsistencies apparent throughout his evidence.  Given this, I am satisfied that the applicant is a Burmese citizen and his application will be assessed as such.

   Attacks by Burmese authorities

2. I do not accept that the applicant was ever assaulted and extorted by the Burmese police or had to hide from them, or that he witnessed an attack on his village and had to escape with his family to a neighbouring village.  His account was vague and inconsistent.  In his statutory declaration he claimed that his village was attacked by the Burmese authorities in July 2012, people were assaulted and their mosque set on fire but he had seen them coming and fled with his family to the next village.

3. He was in Rangoon in July 2012 and could not have been in the village as he claimed.  I do not accept that the error was because he had a Bengali interpreter given he did not correct it at the start of the hearing even though he was given the chance to, and he had the statutory declaration read back to him before he signed it.  If he was unable to understand the interpreter it is reasonable to believe that he would have made this known at the time of making the declaration.  I do not accept that he failed to do so because he was new, given a failure to communicate with the interpreter would not have allowed the interview to proceed.

4. I also note that he has not raised any other inaccuracies in his statutory declaration even though he claimed he had not understood the interpreter, as well as the fact that he claimed that the issue had never been raised with him previously whereas it had been raised and discussed with him during his DIBP interview.

5. I also do not accept that, while the incident occurred in Rakhine, he was referring to the fear he felt in Rangoon and that he had hidden with his family in a friend’s house.  He claimed that he didn’t know what happened to his parents because they lived at separate addresses, yet this was inconsistent with what he had said during his entry interview (Folios 91-3. He failed to give any addresses on his protection application).  I do not accept that he didn’t understand what was being asked, or that he had only been asked about his parents’ address as he had to give both addresses on the form.

6. I do not accept that the applicant had been extorted for money by the police, had his roadside shop confiscated or been assaulted or verbally abused by the police.  His account of the alleged actions by police was inconsistent, and is also inconsistent with country information that indicates that the likelihood of societal violence against Muslims (including Rohingya) outside Rakhine State is assessed as low.[3]     

   [3] DFAT Country Information Report, 9 June 2015, p 15.

7. I have considered the range of issues that the applicant has claimed am not satisfied thatGiven this, as well as the applicant’s lack of credibility, I am not satisfied that the applicant has been targeted by the Burmese authorities or that he would be detained or killed by the authorities if he were to return.

   Religious Observance

8. I am not satisfied that the applicant was a devout Muslim who was prevented from practising his faith because the police targeted Muslims.  Country information indicates that Muslim communities in major cities generally live peacefully[4] even though they face moderate levels of societal and low levels of official discrimination. 

   [4] Ibid, p 6.

9. Despite claiming that he was targeted as a Muslim and had to go to mosque secretly in case he was targeted he still attended mosque weekly and was able to celebrate the main Islamic commemorations.  He said at one point that he would go to mosque once a week, that even once a week wasn’t allowed before agreeing that he could go weekly to Friday prayers. I do not accept that not displaying one’s prayer cap until one was inside the mosque was doing things in secret. Whilst it may have been a minor inconvenience, it does not reach anywhere the threshold of what would constitute serious harm.

10. I am not satisfied that the applicant is a devout Muslim and was unable to pray five times a day in Burma in a mosque.  The applicant said that he went every now and then to mosque in Australia, later clarified as once or twice a week.  Given he is able to pray five times a day in a mosque in Australia and yet doesn’t do so, would not indicate the kind of devout follower his claim to have to pray five times a day in a mosque would indicate.  I do not accept that his failure to pray five times a day in Australia was because he had to work. 

11. The member has lived in Syria, Saudi Arabia and the UAE and it is common for devout Muslims to pray on a rug in their office, home or by the side of the road if unable to attend a mosque.  I am satisfied that the applicant’s lack of regular prayer is due to his relative lack of devotion rather than being denied the ability to do so. Because of this relative lack of devotion I am not satisfied that the restrictions placed on his observance in Burma reach the threshold of serious harm for Convention purposes.

    Other Issues

12. I accept that the applicant has undertaken low-skilled work, however I am satisfied that this work is commensurate with his education level and it has allowed him to survive economically.  I also do not accept that the applicant will suffer serious harm based on his Rohingya ethnicity.  Whilst country information[5] indicates that Rohingya communities outside Rakhine State face discrimination similar to that faced by Muslims in Burma, and that they face moderate levels of societal discrimination, I do not accept that either individually or cumulatively this discrimination amounts to serious harm for Convention purposes.

    Return to Burma

    [5] Ibid, p 11.

13. I don’t accept that the applicant would be unable to return to Burma because all Muslims were considered temporary residents, or that he face serious harm as a returned failed asylum seeker.  There is no country information to support these claims nor was any provided by the applicant.  The only group subject to official scrutiny on return to Burma are former political prisoners who have sought asylum, however this does not apply to the applicant.  As a consequence I do not accept that there would be real chance of the applicant facing serious harm on return to Burma for simply being a failed asylum seeker.

14. I also do not accept that the applicant would be unable to return to Rangoon because he had no ID documents.  I have not found this claim to be credible, given that he has previously claimed that his family had no documents at all, yet when pressed was able to provide a copy of an ID document for his mother.  I find that the applicant does have access to ID documents in Burma.

15. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

16. Because I do not accept that the applicant is stateless or lacks ID documents, that he was assaulted and extorted by the police, had to flee from an attack on his village, was prohibited from practising his faith, would be unable to return to Rangoon, or would face significant harm because of his Rohingyan ethnicity or as a failed asylum seeker, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

17. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burma, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

18. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), 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).

20. 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

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2.        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).

    3.        If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.