1508079 (Refugee)

[2017] AATA 620

1508079 (Refugee) [2017] AATA 620 (13 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508079

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Rodger Shanahan

DATE:13 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 13 April 2017 at 12:09pm

CATCHWORDS
Refugee – Protection visa – Stateless – Rohingya – Harm from Burmese authorities – Credibility issues – Found to be [Country 2] national

LEGISLATION

Migration Act 1958, ss 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be stateless, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] June 2015.

3. The applicants applied for Protection (Class XA) visas. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.

4. The applicants appeared before the Tribunal on 15 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the [Country 2] and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   CLAIMS AND EVIDENCE

   Protection Visa Application

6. The applicant claimed that she was born in [Country 1] and was stateless, to a Burmese father who was stateless and passed away while her mother was pregnant with her.  Her mother left the applicant when she was [age] and she had never heard from her since.  She lived all her life in [Country 1] as a refugee until she fled the country to come by boat to Australia in February 2013.

7. She feared returning to Burma as her father escaped persecution because he was Rohingya and was unable to return because he was not a Burmese national.  She was denied Burmese citizenship and could never return to Burma.  Her husband was also a stateless Rohingya and they suffered significant harm in [Country 1]; they were never granted refugee status and were arrested many times and forced to pay bribes to be released.

8. Her husband was arrested by the [Country 1] police in 2004 and deported to the border of [country], while she and her [child] were left behind in [Country 1].  She hid in the bushlands and not the house in fear at being arrested by the [Country 1] authorities.  They would never be recognised as refugees in [Country 1] and neither would their children have access to education.  Her husband fled [Country 1] in 2009 and sought asylum in Australia.  She would not be allowed to return to Burma by the Burmese government and if she returned illegally she would be harmed by the Burmese authorities.

   AAT Hearing

9. The applicant was asked if her children had separate claims or whether they came solely under the applicant’s claims.  She stated that they relied on her claims alone.  The rest of the family was asked to wait outside.  She claimed that if she returned to [Country 1] she had no documentation and she would be jailed.  She could not say why she had no documentation.  She did not believe that she had any nationality.  Her father was a Rohingya and her mother was [a Country 2 national]. The applicant had been born in [Country 1] but didn’t know if she had any siblings. 

10. When she was [age] years old her mother either died or married someone else – she didn’t know which.  Her father had passed away in either 2015 or 2016 but had not had much contact with him for a long time because she didn’t like him.  She then said that her husband had contact with her father.  Her father’s name was [name] and then claimed that this was in fact her father’s [relative] she had been referring to.

11. Asked about her biological father his name was [Mr A] but she didn’t know how long she had stayed with him for.  She believed that her father died when her mother was pregnant but she didn’t really know.  She was with her mother until she was [age], and hadn’t lived with anyone else.  When she was [age] her mother left; her [relative] said that her mother returned to [Country 2] but had not returned. 

12. Asked why her mother didn’t take her daughter with her, she claimed her [relative] said the mother said she would return temporarily but never did.  Asked if she left any contact details with the applicant’s [relative], such as addresses, contact numbers or details of anyone to get in contact with.  She claimed her [relative] never told her anything. Asked if she enquired of her [relative] if she had any relatives in [Country 2], she claimed she did but her [relative] said her mother was killed in [Country 2].  Asked to clarify what her [relative] said to her regarding contact details and the like, she claimed that her [relative] didn’t tell her.  Asked why he didn’t, she claimed she didn’t know.  She then said that her [relative] didn’t know any contact details.

13. It was put to her that it was strange that her mother would not take her to [Country 2], and she said that she didn’t know why she was left.  Asked if her [relative] tried to get her [Country 2] identity documents or UN documentation, she claimed that he didn’t.  He told her that they were really Rohingya.  Asked why her mother would leave her with a stateless person in [Country 1] and not take her to [Country 2] where she could have citizenship.  She claimed she didn’t know and knew only what her [relative] told her.

14. She met her husband in [Country 1] in the village where she lived - he was building a house. She didn’t have a job at the time. It was around 1999, the same year they married.  He was a Rohingya who was registered with the UN.  She wasn’t registered with the UN because she was sick at the time – her husband and the children went to [Country 1] to register with the UN.  She then said [one child] and husband registered but not [another child].  The applicant said she had gone to register three or four times but security wouldn’t allow her in.  Asked why they wouldn’t let her in, they told her that her husband was already in Australia as she showed them that [one child] had been registered but wouldn’t allow her to do so.

15. She was pregnant with her [child] at the time but couldn’t remember the year it was.  She then said she thought it was in 2009.  Asked what other years she went, she claimed that she went in 2008, as well as 2011.  This last time she went with her husband.  It was put to her that her husband was in [Country 1] in 2008 and she couldn’t remember if her husband was there or not.  It was put to her that she had said previously that she wasn’t allowed in because she was with her husband.  It was put to her that her husband had a UN card issued in 2008 and she was asked why she didn’t have one issued at that time; she claimed she couldn’t remember.

16. Asked why she wasn’t registered well before she was [age] (in 2008), she claimed that she didn’t have any documentation.  Asked why she didn’t go to the UN to get some documentation, she claimed that her husband was afraid that if they went out the Immigration police would arrest her because she had no documentation.  It was put to her that she could have gotten herself to the UN centre in [Country 1] in order to get some documentation.  She claimed that she had gone there, but without documentation the security wouldn’t allow her in. 

17. She was asked why she would be turned around by the UN, given if she were a Rohingya she would have no documentation and it was the very reason she was going to the UN (in order to get some documentation).  It was put to her that she had to go out sometimes and was asked why she sought documents when she was [age] and not prior to this.  She simply repeated what she had said previously.

18. She was asked why her father’s name on her marriage contract said that it was [Mr A] and country information indicated this was a very [Country 2] name, and not Rohingyan.  She claimed she didn’t know why this was and perhaps someone had misspelt it.  It was put to her that her father’s name appeared to be [of Country 2 origin], her mother was [a Country 2 national] and this raised questions whether she was [a Country 2 national] and not Rohingya.  She said that her husband paid for the marriage certificate.

19. Her husband had been previously married and had children – she didn’t know many children, but one of them had a UN card in [Country 1].  She didn’t know if he had any other children but had been told that his previous wife had passed away. 

20. The applicant’s husband was brought in to the Tribunal.  He was asked where they met and he said it was while they were in [Country 1] when he was [working] at their village.  He had been married previously and had [number] children ([number] in Australia, [number] in [Country 1] and [number] in [country]).  He then said that the one in Australia and had only recently told his current wife that he had children from a previous marriage.

21. Asked why he would only tell her so late in their relationship, he claimed that he was in [Country 1]; he forgot the year he told her but it was the year she was pregnant with [one] child.  He can’t remember if he told her that he had [number] children.  He was asked why he would hide the fact as to how many children he had from the previous marriage and he claimed that he was scared that she would leave him.  The applicant arrived in [Country 1] in 1992 and registered with the UN in 2002.  He registered his children to his current wife in 2002.  Asked who he registered then, he claimed that it was [the second named applicant].  His wife was sick and didn’t go.

22. Asked if she went the next week or next month to register, he claimed that he brought his wife.  Asked to clarify, he said she didn’t go in 2002 and it wasn’t easy to get in.  Asked if she went the next year, he said it wasn’t easy to get in.  Asked if he told the UN his wife’s name (as the mother of the child he was registering), he stated that he didn’t know how to write and fill in the form and had been arrested eight times already.  Asked again if he gave the UN the mother’s name, he claimed that he only gave his name and his child’s name.  He claimed the form was filled out by the agent at the gate and only gave his and his [child]’s name - he agreed that he understood [language] to speak and he agreed he did.  It was put to him that the agent would surely ask him the questions and then write down the answers he gave them. He then said that he only copied the documentation from other people.

23. He was asked to clarify whether he gave the UN the name of [the second named applicant]’s mother when he registered him, and he claimed he did.  Asked what name he gave the UN, and he claimed he just photocopied it from the other person; the name he gave was [Name A].  He just used the other person’s photocopy.  It was put to him that he had claimed that the agents filled out the form and now he said he was using a photocopy.  He then said he used a photocopy and [Name A] was [a Country 2] name.  It was put to him that he had just stated he gave a false [Country 2] name to the UN to register his [child], and had claimed variously that an agent filled out the form and that he had just given a photocopy form that contained the name [Name A]. He then said he got a photocopy from another person.

24. It was put to him that he had just given the UNHCR a false name knowingly according to him, and he had also said both that he had had an agent fill out the form and that he had used a photocopy with an [Country 2] name on it.  He was asked to clarify what occurred.  He claimed he wanted to find an easy way to do all the things.  He had to use someone else’s photocopy even to go to the clinic – it was put to him that it must have been easier to use correct information.  He claimed that it was just a coincidence that the name of [the second named applicant]’s mother was [a Country 2 national] – he was illiterate and he paid another agent to fill out the form.  He stated that his wife’s father’s name was [Mr A].  It was put to him that his name was [of Country 2 origin] and the ‘coincidental’ name used in the photocopy was also that of [a Country 2 national]. 

25. He was asked why his father-in-law had a [Country 2] name and he claimed that he didn’t know this.  He claimed that some names were changed around and he was often confused as to names.  Asked if his wife spoke Rohingya, he claimed that she didn’t.  It was put to him that she had been raised by her Rohingya [relative] since she was [age], so it was reasonable to believe that she would have picked up some of the language.  He claimed she knew it, but only children that were interested would learn it.  He then said that his own name and that of his child had sometimes been confused; instead of [name] he was sometimes referred to as [name].  It was put to him that the concern was the origin, not the order of the names – whether names were peculiarly [Country 2 in origin] or not.

26. The applicant was then advised about s 424AA and it was put to her that the Tribunal was concerned that her father had an identifiably [Country 2] name and she had confirmed [that] her father’s name was [Mr A], and in the UNHCR in [Country 1] the mother of [the second named applicant] was noted as [a Country 2 national] named [Name A]. Maternity tests showed that [the second named applicant] was the child of the applicant and her husband, and the Tribunal had concerns that the applicant was actually [a Country 2] national named [Name A] and that she may have a family support network that existed in [Country 2], rather than having been abandoned when she was [age].

27. It was also put to her that her husband had said that she didn’t speak Rohingya, and she had claimed previously that her [relative] said she couldn’t register with the UN unless she had a Rohingya identity.  It was reasonable to believe that if this were the case her [relative] would have tried to teach her Rohingya; this raised concerns that she had no Rohingya relations.  She repeated her husband’s claim about the submission of a photocopy with [a Country 2] woman’s name which is why the problem existed.  She was asked why there was a need to provide a photocopy with someone else’s name, and her husband had also said that he had filled out the form with an agent and her husband had been in charge of the form filling out. She had nothing else to say about these concerns.

28. The adviser was asked why the applicants needed to proffer a peculiarly [Country 2] name as part of their registration.  The Tribunal was pointed to para 5.20 of the submission, and the adviser was advised that the Tribunal was concerned that the applicant and her father both appeared to have [Country 2] names, which raised questions regarding her nationality.  He also noted Section 6 and stated that the children had their own claims that were submitted prior to the interview.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The applicant arrived in Australia as an unauthorised boat arrival on February 2013.  She claimed that she was stateless with a Rohingya father, however as will be discussed below the Tribunal believes that she is [a Country 2] national and as a consequence her application (and that of the other applicants) will be assessed using [Country 2] as the country of reference.

30. The applicant is a [age] year old married woman.  She claimed that she was stateless and that if she returned to [Country 1] she would be jailed for having no documentation. She would not be allowed to return to Burma by the Burmese authorities and would be harmed by them if she returned illegally.    

31. 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.

32. 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 find that she fabricated her claim in order to be granted a protection visa.

    Identity

33. I do not accept that the applicant’s name is [name], that she was born to a Rohingya father and [a Country 2 national] mother and that she is stateless within [Country 1].  Rather, I am satisfied that both her parents are [Country 2 nationals] and that she either already has, or is able to obtain [Country 2] citizenship.

34. During an interview [in] March 2015 (unnumbered folio) she stated that her father’s name was [Mr A] and her mother’s name was [Ms B], and the applicant’s marriage certificate (folio 68) shows her to be the daughter of [Mr A].   Information provided by UNHCR (folio 157) indicated that the biological mother of [(the second-named applicant)] was [a Country 2] national named [Name A].  The applicant has also provided a DNA test indicating that the second- and third-named applicants are the children of the first-named applicant.

35. The DNA and UNHCR information would therefore indicate that the first-named applicant is actually [a Country 2] national by the name of [Name A].  This is supported by the naming conventions exhibited by [Country 2 nationals]. There is a range of country information that indicates the name [Mr A] to be [Country 2 in origin][1], while the prefix ‘[name]’ in a name is also noted as being an honorific in the construction of [Country 2] personal names.[2]  I have taken into account the post-hearing submission explanation for the inconsistency in the father’s name and the possible transliteration issues.  However, I place more weight on the fact that the distinctively [Country 2] name fits in with the applicant’s mother’s name ([Ms B]), and what I believe to be the applicant’s name ([Name A]).

    [1] [Information deleted].

    [2] [Information deleted].

36. I do not accept the claim put forward that the UNHCR record was the result of a mixup during registration.  Her husband was vague and contradictory with this claim; having initially stated that when he went to register at the UNHCR he only gave his and his [child]’s names to the agent.  When asked whether he had given them his wife’s name he said that he had and added that he just used another person’s photocopy with the name [Name A].  It makes no sense that he would be dictating to an agent to fill out a form for him because he was illiterate and at the same time producing a photocopy form from someone else that contained a different name for the mother of the child.

37. I also place little weight on the applicant’s husband’s post-hearing submission (folio 136) and that of the adviser (folio 133) seeking to explain how the name [Name A] came to be associated with the applicant.  The explanation was never proffered until the inconsistency was brought to the attention of the applicant, as does the fact that he filled out a statutory declaration (folio 102) without mentioning that they had registered the child using a false [Country 2] name.  I am satisfied that both of these actions indicate a desire to hide these facts from the Commonwealth.  The applicant’s husband was also vague and inconsistent explanations about the refusal on the part of the UNHCR and guards to register the applicant, the role of the agents filling out the applications given he was illiterate, and the fact that it was simply coincidental that the name on the photocopy he claimed to use to get the applicant to a medical clinic was [Country 2 in origin].   

1. I also place little weight on the marriage certificate (folio 68) that states the applicant’s name as [name].  It is difficult to verify the veracity of the certificate, and the basis on which this name was proffered and written down, or whether any checks were done to verify the accuracy of the person’s name.  I therefore place more weight on the documentation provided by UNHCR in determining her real name.

2. Because I have found the first-named applicant to be [a Country 2] national by the name of [Name A] whose parents are also [Country 2] nationals [Mr A] and [Ms B], it follows that the applicant could not have had a Rohingya [relative] who raised her.  Her inability to speak the Rohingya language, particularly as she claimed that her [relative] would not allow her to register with the UN unless she had a Rohingya identity (and presumably her [relative] would have attempted to form that identity, including through the use of language) supports this finding. 

3. I do not accept that she has struggled to learn the language as she claimed (folio 93) given she had allegedly been in her [relative]’s care since she was [age] and then married a Rohingya husband, giving her decades in which to become familiar with the language.  It also then follows that the applicant was not abandoned by her mother as a [age] year old and left in a Rohingya [relative]’s care.

4. Because she is [a Country 2] national it also follows that she is not stateless.  If the UN declared that she was [a Country 2] national it is reasonable to assume that this was based on some documentary or other evidence.  And because she and her parents are [Country 2 nationals], as well as the fact that she lacks credibility as a witness, it is reasonable to believe that she has a family support network existing in [Country 2]. Given her lack of credibility, it is also plausible that both her parents are still alive and her father is not deceased and her mother didn’t abscond as she has previously claimed.  

5. Given that she has provided no evidence that she has sought to gain [Country 2] citizenship I am satisfied that this is either because she already has the required documentation but is unwilling to admit it, or because she has not yet taken all steps to avail herself of the right to enter and reside in [Country 2], as Section 36(3) requires before Australia is required to exercise its protection obligations.

6. I have taken into account the legal advice provided by [a Country 2] law firm (folio 95) however lend it little weight.  While I accept that it was given in good faith, I note that the advice is based on the fact that the applicant’s father was from Myanmar, was deceased, that she never knew her mother or father and was raised by her Rohingya [relative] in [Country 1].  I have found all of these claims to have been fabricated.  I also do not accept that the applicant may have lost her citizenship because she has never lived in [Country 2] and have never registered herself with [a Country 2] consulate – again this relies on the applicant’s testimony which I have found to lack credibility.

7. I also do not accept that she would be unaware of [deleted] and therefore unable to obtain citizenship.  The requirements outlined in Chapter [number] of the Statute[3] that the [Country 2] legal advice refers to (folio 95) only apply to aliens who require to be naturalised.  Aliens are considered to be everyone considered to be a non-citizen (Article [number]).  The applicants would automatically be considered to be [Country 2] citizens by dint of the fact that they had [Country 2] parents or [a Country 2] mother (Article [number]).

   [3] [Information deleted].

8. Although the applicant has claimed that the second- and third-named applicants relied on her claim, a separate claim for them has been raised in the post-hearing submission.  Because I have found the first-named applicant to be [a Country 2] national, it follows that the second- and third-named are not stateless, but have a right to [Country 2] citizenship themselves.

9. The [Country 2] Citizenship Statute No [deleted], 2006 states that [a Country 2] citizen includes ‘Children born through legal wedlock from [a Country 2] mother and a stateless father or whose country does not provide automatic citizenship to their offspring.’  Given this, the applicant is able to pursue [Country 2] citizenship for both the second- and third-named applicants.  Her failure to provide evidence that she has done so, or attempted to do so, would indicate either that she has either already done so and has not been honest to the Tribunal, or because she wishes to portray them as being stateless when she is able to take steps to avail herself of the opportunity to enter and reside in [Country 2] and to gain citizenship for her children.       

10. I have taken into account the post-hearing submission that speaks of the need to consider the Convention of the Rights of the Child’.  Some of the aspects mentioned refer to the second- and third-named applicants as stateless Rohingya Muslims which I have found not to be the case.  Whilst I acknowledge that their case is somewhat complex, the complexity is largely the result of the first-named applicant and her husband trying to pass the applicants off as stateless Rohingyas when the Tribunal finds that they have [Country 2] citizenship or can avail themselves of it.

11. The second- and third named applicant can freely live as [Country 2] citizens with their [Country 2 national] mother and a pathway exists (article [number]) for the husbands of [Country 2] citizens to become naturalised in due course.  How they arrange their family is not the business of the Tribunal, other than to be satisfied that there is not a real chance that they will suffer serious harm if returned to [Country 2].

12. Because the first-named applicant is not stateless and is [a Country 2] national it follows that she was never denied Burmese citizenship and could never return to Burma, were arrested many times and forced to pay bribes, would be jailed on return to [Country 1] for having no documentation.  If she were refused refugee status in [Country 1] as she claimed, I am satisfied that it would have been because she was [a Country 2 national] and not part-Rohingya.

13. I am satisfied that the applicant was put on notice that the Tribunal was concerned that she was [a Country 2] national, and not stateless as she claimed.  She made no specific claims during the hearing to fear serious harm if returned to [Country 2] (indeed she continued throughout to claim that she was stateless), however in the pre-hearing submission (folio 86) there is a claim to fear refoulement if she should go to [Country 2] and found not to hold a right to return and reside there.  Because I have found that she (and her children) has such a right and may have already, or can exercise that right, I do not accept that there is a real chance that any of the applicants will be refouled or face any other serious harm if returned to [Country 2]. 

14. As the applicants haven’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

15. Because I do not accept that the applicants are stateless Rohingya or that the first-named applicant was arrested many times and forced to pay bribes or would be jailed if returned to [Country 1], or would be refouled if returned to [Country 2], I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm. 

16. 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 [Country 2], 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

17. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Protection visas.

    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.

    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.